The Hillsborough recorder. [volume] (Hillsborough, N.C.) 1820-1879, 1855-01-10

: heir enters and revests the estate, Il,
i widow is not entitled to dower. rbi
distinction, which applies where til
: widow claims dover At common law
] is equally applicable where she claim
: under the statute: for instance, II
: trustee sells the land in violation Of th
/, trust, and the cesfM qH truat marie
and dies without reycsting his estate
} the widow is not entitled to dover; toI
! he had mere right toapply to 4 Couri
, Of Equity, and have thc purchaser de
! clared trustee, il he bought with
tice: bur, a> he did not in his lifetime
; assert this right, although his heir may
!; do 50 after his death, il was not intend.
; ed to give the widow a claim 10 dover
Indeed, it could not be done, without
destroying all analogy between legal
and an equitable estate. which. the In
tentlon was, TO put on the same foot
ing. So, il trustee uses money be-
longing to the trust fund, and invests
ii IN land, although the ccSfui qui trus!
may in equit, follow the fund, and
CLAIM the land, yet, until he does 50,
he has a mere right, not an estate.
No question is made as To the dis
tlnction between an estate and a right
in equity. Indeed, We we're informed
upon the argument, that his Honor, in
the Court below, decided against the
widow, upon the ground, that her hus-
band had only right, and not an es.
tate. So there is no difference Of opin-
ion as Ia the principle; but we think
his Honor WAS mistaken in making the
application, and IN holding that the
vsndee had no equitable or trust es.
tate. The ground Of the distinction
insists in the difference between
trust created by the act Of the parties,
where he who has the legal estate, CON
sents to hold it in trust for the other,
and there is no adverse possession or
conflict Of claims, and trust created
BY the act ol a Court OF Equity, whore
there is a conflict Of claims, aud the
party having the legal estate holds adj
,ersely, and does not become trustee
until hc Is converted into one by a de-
cree founded on fraud, or the like.
In the former, the cesiui gui trust has
an estate IN the latter, there is mere
right; aud the idea of dover or curte-
y, Is out Of the question. 50 the IN.
quiry is narrowed t. this: does the
case Of Il ,endre whO has been let into
possession, aud ha, pad part of the
purchase money, fall under the head Of
trust created by the act Of the par
ties, where there is no adverse posses
sion or conflict Of claims; or, of
trust created by tbs act UG tie Court,
where there is an adverse possession
or conflict Of claims, until the lc-
gal owner is converted into a trustee
by decree: Apart from authority,
there woald seem Ia be but little diff
Guilty IN coming to the conclusion that
il is trust created by the act of the
parties. They consent aud agree that
the legal title shall be retained by the
vendor IN trust, a. a security for the
payment of the purchase money, aud
then 10 trust for tic yrnhee. So, there
IS no conflict Of claims, or anything
adverse in their position towards each
other. But the question is settled br
the atjudieations; Sug. Y. and r.,
ch. I, sec. ! CT. 9, sectlun ,.
contract for the sale ul land, en-.
furciblc 10 Equity, though IN fact un.
executed. Is considered 4, performed,
and the laud is IA Equity the property
ot the ,eudcce.' Adams El. lI0.
the ycndcc Is entitled to the rents il
the property decreases ~ ,aiuc, the
luss Is his; II the value 1, enlanceh, il
Is his gain. ST lis death, il descend,
as real estate to the heir, or will pass
to a ,lc'lsee, aud they will be entilled
to have The price paId out aF the per-
sonalty. II the contract, alter the
death Uf The vcndce. be reseindrd, III.
heir or lctisrr will be entitled to the
purchase money. liRounES MARcn, 10
trsey j9r.
Is owner Of the estate, the ,sndee
may Iullnw It IN the hands n 4 pur.
chaser, Mhu takes 4 conveyance with
nntice. Here We are presented with
striking illustration m tle difference
between the twukinds oI trusts while
tile vendor retains the legal estate, the
tendee las an equitable estate, aud lIls
widow Is, un,lcr the statute, entitled
10 dover, aud there Is no statute Of
Limitations 10 affect him. But il the
vendor passes the legal estate nut Of
him, tbs divests the equitable estate
Of the ycu,rc. lie has then mere
right, and the Statute Uf Limitations
1ill bar him, unless he asserts his right
against unc whn has taken the legal IS.
tate. either as a volunteer ur a purClla.
ser, with notice. lluSENDgS y. luRp
ANNEsLEf, . Sch. aud Lei. 6j5; En-
WARDS '. UNIVERSITY, Dcy. aud Bat.
Eq 526.
There is another view which tend.
strongly to shun the correctness Of nur
conclusion. We have seen abuye that
soun alter The introduction IL the doc.