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CHAPTER XXVIII.

THE REMEDIES OF THE CESTUI QUE TRUST IN THE EVENT OF A BREACH OF TRUST.

UPON this subject we shall consider, 1. The right of the cestui que trust to follow the estate into the hands of a stranger, to whom it has tortiously been conveyed; 2. The remedy against the trustee personally by way of compensation for the mischievous consequences of the act; and, 3. The mode and extent of redress in breaches of trust committed by trustees of charities.

I. Of following the estate into the hands of a stranger. The rule is, that a cestui que trust may follow the estate specifically into the hands of any person who is either a volunteer, whether with or without notice, or a purchaser for valuable consideration with notice. But against a purchaser for valuable consideration without notice, or against his alienee, whether a volunteer or purchaser, and whether with notice or without, or against a purchaser without notice from a purchaser with notice, the cestui que trust is barred from prosecuting his claim (a).

Upon this right of the cestui que trust against the

(a) See supra, p. 205.

grantee of the estate we shall enter upon two questions: 1. Within what limits of time the cestui que trust may be allowed to institute proceedings for the recovery of his right; and, 2. To what extent, and under what circumstances, the Court will order an account of the mesne rents and profits.

1. As to the limitation of time within which the suit must be instituted.

It is a well-known rule, that, as between cestui que trust and trustee in the case of a direct trust, no length of time is a bar; for, from the privity existing between them, the possession of the one is the possession of the other, and there is no adverse title (b). It has hence been argued, that, as the person into whose hands the estate is followed is also by construction of law a trustee, the cestui que trust is entitled to the benefit of the rule, and is not precluded by mere lapse of time from establishing his claim; but the authorities to the contrary are clear and express, and cannot leave a doubt (c). "It is certainly true," said Sir W. Grant, "that no time bars a direct trust; but if it is meant to be asserted that a court of equity allows a man to make out a case of constructive trust at any distance of time after the facts

(b) See Chalmer v. Bradley, 1 J. & W. 67; Bennett v. Colley, 2 M. & K. 232; Llevellyn v. Mackworth, Barn. 449; Wilson V. Moore, 1 M. & K. 146; Townshend v. Townshend, 1 B. C. C. 554; Hamond v. Hicks, 1 Vern. 432; Norton v. Turvill, 2 P. W. 144; Attorney-General v. Mayor of Exeter, Jac. 448; Heath v. Henly, 1 Ch. Ca. 20; Sheldon v.

Weldman, 1 Ch. Ca. 26; Lord Hollis's case, 2 Vent. 345; Earl of Pomfret v. Windsor, 2 Ves. 484; Hargreaves v. Michell, 6 Mad. 326; Nevarre v. Rutton, 1 Vin. Ab. 185.

(c) Townshend v. Townshend, 1 B. C. C. 550, see 554; Bonney v. Ridgard, 1 Cox, 145; Andrew v. Wrigley, 4 B. C. C. 125; Lockey v. Lockey, Pr. Ch. 518.

and circumstances happened out of which it arises, I am not aware that there is any ground for a doctrine so fatal to the security of property as that would be: so far from it, that not only in circumstances where the length of time would render it extremely difficult to ascertain the true state of the fact, but where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would originally have been given upon the ground of constructive trust, it is refused to the party who, after long acquiescence, comes into a court of equity to seek that relief (d)." And Lord Redesdale observed, "The position that trust and fraud are not within the statute must be thus qualified that if a trustee is in possession, and does not execute his trust, the possession of the trustee is the possession of the cestui que trust; and if the only circumstance is, that he does not perform his trust, his possession operates nothing as a bar, because his possession is according to his title: but the question of fraud is of a very different description; that is a case where a person who is in possession by virtue of the fraud is not in the ordinary sense of the word a trustee, but is to be constituted a trustee by a decree of a court of equity founded on the fraud; and his possession in the mean time is adverse to the title of the person who impeaches the transaction on the ground of fraud (e)."

As the remedy of the cestui que trust is considered, therefore, on the footing of any other equitable right, it may be proper to examine briefly how the lapse of time operates generally upon suits for equitable relief.

97.

To claims in equity there appear to be but three

(d) Beckford v. Wade, 17 Ves.

(e) Hovenden v. Lord Annesley,

2 Sch. & Lef. 633.

bars-1. A statute of limitation; 2. The presumption of something done which, if done, is subversive of the plaintiff's right; 3. The ground of public policy or the inconvenience of the relief.

1. Wherever there is a statutable bar at law, the same period is by analogy, or rather in obedience to the statute, adopted as a bar in equity (ƒ).

The language of Lord Camden upon this subject has been admired as peculiarly energetic. "A court of equity," he said, "which is never active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his right, and acquiesced for a great length of time. Nothing can call forth this Court into activity but conscience, good faith, and reasonable diligence. Where these are wanting, the Court is passive, and does nothing. Laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was always a limitation to suits. But as the Court had no legislative authority, it could not properly define the time of bar by a positive rule to an hour, a minute, or a year it was governed by circumstances. But as often as parliament had limited the time of actions and remedies to a certain period in legal proceedings, the Court of Chancery adopted that rule, and applied it to similar cases in equity; for when the legislature had fixed

(f) See ex parte Dewdney, 15 Ves. 496; Bonney v. Ridgard, 1 Cox, 149; Beckford v. Wade, 17 Ves. 97; Townshend v. Townshend, 1 B. C. C. 554; Aggas v. Pickerell, 3 Atk. 225; Belch v. Harvey, Appendix to Vend. and

Purch. No. 15; White v. Ewer, 2 Vent. 340; Knowles v. Spence, 1 Eq. Ca. Ab. 315; Pearson v. Pulley, I Ch. Ca. 102; Johnson v. Smith, 2 Burr. 961; AttorneyGeneral v. Mayor of Exeter, Jac.

448.

the time at law, it would have been preposterous for equity, which, by its own proper authority, always maintained a limitation, to countenance laches beyond the period that law had been confined to by parliament ; and therefore in all cases, where the legal right has been barred by parliament, the equitable right to the same thing has been concluded by the same bar (g)." And Lord Redesdale to the same purpose observed, " It is said that courts of equity are not within the statutes of limitations. This is true in one respect: they are not within the words of the statutes, because the words apply to particular legal remedies; but they are within the spirit and meaning of the statutes, and have been always so considered. I think it is a mistake in point of language to say that courts of equity act merely by analogy to the statutes: they act in obedience to them (h)." And again, " I think the statute must be taken virtually to include courts of equity; for when the legislature has by statute limited the proceedings at law in certain cases, and provided no express limitations for proceedings in equity, it must be taken to have contemplated that equity followed law; and therefore it must be taken to have virtually enacted in the same cases a limitation for courts of equity also (i);" and his Lordship then lays down the rule, that "if the equitable title be not sued upon within the time that a legal title of the same nature ought to be sued upon, the Court, acting by analogy to the statute, will not relieve. If the party be guilty of such laches in prosecuting his equitable, as

(g) Smith v. Clay, cited in note to Deloraine v. Browne, 3 B. C. C. 639.

(h) Hovenden v. Lord Annesley,

2 Sch. & Lef. 630.

(i) Ib. 631; and see Marquis of Cholmondeley v. Lord Clinton, 2 J. & W. 192.