Vicksburg weekly herald. (Vicksburg, Miss.) 1868-1883, 1877-07-06

nedY vs.. Daley, lat sch. and Lii. Joly Ger
~ We. Gaulheld, . B. and B. 2I2, shields
ys. Atkins, 3, Atk. 700, L0ngley vs.. Fisher,
3, Beavan 9O, announce the doctrine that
'tine and non claims" win not bar q trust
on the principle that the Trustee having
gained possession by means Of the trust
shall not By means 0fthGt possession, defeat
the title Oithe person for whom be bad the
possession. In other words, that 3 Trustee
SHALL not take advantage OF bis possession,
which 10 the ccStui que trusts, and control
Otthe trust estate TO cut on and bar the
claim OF the csStui QHe Trust By alienation.
NewsOme We. Flowers, 30 Beayam 46i,
declares that Trustees when u e by their
cestui que trust, cannot set up against them
the adverse title Of third person.
Benjamin VS.. Gill, 45, Ca, ITO, s"put So
lely on the question Of possession" The an
cestOr Of defendant had SCOT possession
OF this land by virtue oil his Office Of exec
utOr,' and when sued by his successor In
the administration, they were not allowed
10 defeat the recovery OF the possession
by an adverse title. The platitudes OF
the opinion were as unealled for as they
are unsustained in their amplitude by
principle or authority. Harrison admir-.
We. Mock ct al, 10, Ala. n. :. 1856, decides
that a judgment creditor by accepting
the position Of Trustee In a deed con-
veying 10 him slaves for the payment
OF creditors generally, including himself,
waived the lien Of his judgment so far as
10 preclude him from selling under his
judgment, and to this effect are Hawley
We. Mauciuls, !, John Oh, ls4. and Rogers
vs., Roge 8, Hoph, CHI. Il 523.
Goodwin ct al VS.. YOnge, % Ala. $50,
holds that at did not lay in the mouth OF
Goodwin, who was a Trustee and had
taken upon himself the trust, TO allege
fraud in the making Of the deed, as AIDE
tense to the relief sought to him, which
was only the reformation Of the deed, and
the appointment OF another Trustee" II
was a matter that did not concern him.
Henderson VS.. segars, ct al % Ala. 352,
decide that a Trustee could not dispose OF
the trust property by sale, In direct Opp0-
sitlOn TO the provisions Of the instrum emit
creating the trust, and refused 10 account
when called on.
lrby, Admir- vs.. Kitchell, Admir-, ~
Ala. 43S, decided that an Administrator
who finds property among the assets Of
the estate, and takes possession OF IL as
such, having no claim to IL himself, cannot
refuse 70 account for 1t on the ground Of
an adverse title never asserted against
him.
McLaren We. Spence, Admir-, q Ala. S94.
holds that one who was Administrator Of
tNO ESTATES was SbtVppeu lOm asheItlnB
thai certain property which he had treated
as the @tate OF one Of his intestates be-.
longed TO the other.
Manigault VS.. Deas,l Baily Eq.R. :S3,deci-
ded that neither an Executor nor his repre-
sentatives could deny the title Of his tesla.
tor 10 property In his possession as EKecu-
tor as against creditors Of the ~testator,
and could not acquire a title adverse TO
his by operation Of law, and that the pos
session OF an Executor is not adverse to
the estate so as TO mature a title under
tue statute Of limitatiOns.
McLaren VS.. Melvin, 3 Jones Eq. 1875,
holds that one who accepted the position
OF Trustee under a deed settling property
TO the use OF q married woman. could not
afterwards subject that property 10 his
demand against her husband subsequent
ly accrued.
Duncan VS.. Bryan, II Ga. SO, announces
that one who mas accepted the Office Of
Trustee shall mot when called on by his
ccStui Qlc trust to account, repudiate the
trust.
Jones VS.. Butler, 80, Barb. GAL, holds that
a Trustee receiving property under a deed
Of trust cannot when called on In equity to
account, make objection that the deed was
void and on that ground retain the trust
property 10 his W use.
state vs.. Merritt, / Chandler, 2jS, de-
cides that one who acquires possession Of
property as an agent cannot compel his
principal and a third person to implead to
determine their right to II while he retains
possession.
White VS.. swami Pick. SC5, decides that
an Administrators who received money as
damages Tor an injury to the rights OF her
intestates in virtue OF her claim as Admin
istratriX was estOpped to deny that II was
the estate Of her ~intestate.
Levin on Trusts and Trustees, page
32j, asserts the general proposition that a
Trustee Is, under no circumstances, allow.
ed to set up a title adverse to his CCStai
Yae trust, and refers to the same English
cases cited by Perry and to no others,
which, as shown above, do not sustain the
proposition In all its cOmprehensiveness
Of statement. The review OF cases cited
from English and American reports shows
that the broad assertions OF Perry and
Levin must be qualified by the principle
deducible from the cases they cite. No
such doctrine Is stated by Hill on Trus.
tees, who puts it correctly thus, viz: alt
Is one Of tbs settled principles Of courts
OF equity tnat Trustees shall not take ad-
vantage Of their. situation TO obtain any
personal benefit to themselves at the eX.
pense Of their ceSttI lRe trUSt.'
Perry on Trusts, sec. $50, repeats the
assertion that emo Trustee, while occupy
ing q place Of trust ana confidence, should
be allowed to set up an adverse title"
and proceeds at once, in the next section,
to state a modification Of the rule to be
shat II q Trustee repudiates the trust by
clear and u~neQuivocal acts "r words, and
claims thenceiOrth to hold tie estate as his
own and not subject 10 any rust, and such
reputation and claim a-e brought TO the
notice or knowledge OF the c,stui Que trust
In such manner that he l. called upon 70
assert his equitable right, the statute (Of
Limitations will begin 10 run" etc., and
this 10 we'll sustained By adjudged cases.
II II be true that q trustee, by his " act,
brought home TO the ccStUi 9ue trust, a n
by lapse Of time and operation Of law. bar
and defeat the beneficiary and hold the
estate 70 himself thereby, on what Just
principle eanitb be denied to a trustee TO re.
sort 70 Ghancery prefer his claim, summOn
the CeSti Que trust and co.trustees to meet
him on equal terms in this forum and obtain
the decree Of the Court as TO his righte as
an individual and his duties as a trustee,
especially where, as in this case, II Is by
no means clear that the instrument Great.
ing the trust has made any disposition OF
the subject matter Of the claim OF the
trusteey The right OF an executor to do as
appellant did 10 this case, has been eX-
pressly affirmed in Saunders VS.. Saun-
derb, 2 little, 3l5, and IL has been distinct.
ly recognized by this Court in Neville
vs. Van Vaetor and wife, IS Mics, 49s, in
which Melville, who was executor, and
had proved the will creating him, In ex.