Liberty advocate. [volume] (Liberty, Miss.) 1835-1866, 1837-01-24


adduced in support Of the proposition, that
even in causes Of technical and direct
trnsts, where the Trustee derives the
right Of CeStueque trust, and assumes. abb
solule ownership over the trust proper,
the latter should not be allowed remedy
in Equity, beyond the period fixed for the
recovery oflegal estates at law; Angel on
Limitation, 1856; and in the case Of Kane
rs. Bloodgood, z J. CHI. Rep. 1874, the same
doctrine is recognized. $50 long,, says
the learned Chancellor who decided that
case, "as the trust is subsisting one, and
admitted by the acts or declarations of the
parties, no doubt, the Statute does not APP
ply but where such transactions take
place between. the Trustee and the ceStue-
que trust, as would in the case of tenants
in common amount to an custer of one of
them by the other ] can hardly suppose
that Courts OF Chancery would consider
lapse of time as of no consequence
There is no good reason why the Statute
oflimitaions should not apply to such a
case THAT is case OF direct trust) as to
cases OF constructive trusts and to cases
of detected frauds, and to all other cases,
where The statute is assumed as u rule of
decision"
This position of Chancellor Kent, and
which has been subsequently recognized
by Hr. Angel, in his Treatise on Limita-
tons, (p 1867 as sound doctrine, is not
stated as a fixed rule OF law, sustained by
authority, but appears to be a deduction
of his own, drawn from the application of
the Statute to cases between tenants in
common The case which the learned
Chancellor was then investigating did not
require the annunciation of this doctrine,
nor is 1t apparent that the analogy which
exists between tenants in common and a
trustee and his ceSt 'eque trust is sufficient
ly perfect to warrant such conclusion,
al least in the unqualified term in which
it is stated. There is unquestionably a
mutual trust between tenants in common,
bul ii is not express or direct in its char
acter; each is seized in his own right of
the whole estate. and the tenant in posses
sion so long as he does not hold adversely
to his co-tenant is construed to be a truS-
lee for the other; The possession of one is
construed to be the possession Of both, but
in the case OF direct and express trust
the trustee comes into possession origi-
nally in that character. In the case be-
fore us Gayden took possession Of the eff
~ INnIl,r- 60, thn,, al,
tied to the succession. 1t would probably
be injustice to Chancellor Kent TO suppose
that he intended 10 lay it down as gen
era rule that in all cases of direct and
technical trusts, where the trustee derives
the right Of his ceStHeque trust, and as
sumes absolute ownership, the statute
should be held invariably to attach, but
upon this foundation alone has Mr.. Angel
rested the validity of this principle; so far
as have been enabled to extend my re-
searches, have not found an adjudicated
case where this doctrine is fully establish
ed.
In fact, the very definition of techni-
cal trust appears to initiate against the
truth of this doctrine. Lord Hardwick in
Street rs. Millim, e Atkyns 6l0,) says.
that trust is where there is such con-
fdence between the parties that no action
at law will lie, but is merely a case for the
consideration of court of Chancery, and
in the case OF Sackey Us. Sackey, plea in
Chancery 518, a technical trust is des-
crlbed to be mere creature Of court OF
Equity, and not at all cognizable in
court Of law; if it be true that trust of
this character is not at all cognizabte ia
a court of law, but is question which
could only be entertained in equity, how is
it it possible for the latter to adopt by
analogy any salutary bar. The learned
Chancellor himself, in former part Of
his opinion, in the case of Kear Us. Blood
good, holds language irreconciable with
this princi Pile ,taken in the extended sense
in which Mr.. Angel has adopted it. He
says a review Of former decisions will en-
able US, as apprehend, to establish upon
the solid foundations of authority and pol
icy, this rule, that the trusts intended by a |
court OF Equity not to be reached or alice
ted by the statute of limitation, are those
and continuing trusts which
are not at all cognizabe in court Of law,
but ia Il within the proper, peculiar and
extensive jurisdiction of a court of equity
This position, | apprehend cannot be cor
rect, ifthe rule laid down by Angel is true.
1t cannot be true that trust falling with
n the proper, peculiar and eateasipe ju-
risdiction Of court Of equity, should be
Affected by the Statute and yet be brought
within its operation by a denial Of the
light of the cestueque trust. The Statute
If limitations do not apply in terms TO
my equitable demand; Stackhouse us.
3aniston, 10 Veesy 453. Yet it is ac-
that Equity takes the same
imitation in cases that are analogous to
hose in which it applies at law, but this
application il is obvious cannot be made
o those cases which lie within the exclu-
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