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advance. Like express trusts, these trusts arise from a confidence reposed in the trustee, and are in accordance with the intention of the parties. In this respect they differ widely from those constructive trusts which are established by evidence and forced upon the conscience of the trustee against his will, and generally to prevent the consummation of a fraud. In the latter case the relation of the parties is hostile from the beginning, and the possessiou of the trustee adverse; and there being no actual confidence reposed in the trustee, there can be no pretence that, according to the intent and contract of the parties, the relation was to be a continuous one. As to the former, the relation being friendly, and a real confidence reposed in the trustee, which may be intended as a continuous one, so long as the relation is recognized and acted upon by the parties, the same reason that induced courts of equity to recognize the trust at all would compel them to recognize its continued existence. The purpose of the trust may have been that the trustee should continue to hold the title, and the same confidence that led to the trust in the beginning would prevent the beneficiary from compelling a conveyance of the legal estate to him. The only respect in which this trust differs from an express trust is as to the mode in which it is established or proven. That is, there is no declaration or agreement by which the terms are stated upon which the trustee is to hold the trust property. When established, they are recognized and enforced precisely as express trusts are enforced; the only difference being that perhaps a different presumption might arise from the possession of the trustee. The trust, though implied from the evidence, is in reality an express trust, and will be treated as such by the court. That is, implied trusts are considered as really the expression of the donor or grantor as those which are denominated express trusts; the difference is only in the form of language by which the trust is expressed. They derive their authority from the will of the donor, grantor, &c., as gathered from his actions or expressions.1
1 Tiffany & Bullard on Trusts and Trustees, 19. In Bartlett v. Judd, 23 Barb. (N. Y.) 263, which was an action to reform a deed, the vendee having been in possession, and more than ten years having elapsed, the court held that he was not barred, notwithstanding the provision of the statute that "bills for relief shall be filed within ten years after the cause of action accrued, and not after." It was held, that when the equitable owner of land is in possession, and is afterward evicted by the owner of the legal title, his cause of action to establish his equitable right does not arise until after eviction. Such was also the opinion of the Chancellor in Varick v. Edwards, 11 Paige (N. Y.),
290. In Harris v. King, 16 Ark. 122, the
The conveyanee from the trustee to the cestui que trust in such cases is but the execution of the trust; the right to obtain the legal title is but an incident to the estate of the cestui que trust. So long, therefore, as the estate exists, so long will the right to acquire the legal title subsist. It is like the right of a tenant in common to compel a partition, and is not a cause of action which accrues in the sense of the statute of limitations, and which may be lost by the lapse of time. The trustee and cestui que trust have the same title, and do not hold adversely so long as the rights of neither are denied. If A. purchases land with his own money, but, for proper reasons, the deed is taken in the name of B. with his consent, and A. goes into possession and continues to use the property as his own, this would be an implied trust; but no one would think the statute of limitations would deprive A. of his estate for a failure to obtain the legal title within four years. He is guilty of no laches in asserting his rights. His possession is the most effective assertion of them.
In Texas, this question has been considerably discussed, and the decisions are in accordance with this view. The trust created is held to be a continuing trust; that the vendee is clothed with the equitable title, and the statute does not run against his right to enforce a specific performance, so long as he remains in possession with the acquiescence of the vendor.1
It is a
SEC. 220. Purchaser of Property for Benefit of another. well-settled rule that where one person purchases lands or other property for another, and the purchase-money is paid by the beneficiary or out of his funds, although the title is taken in the name of the person making the purchase, a trust results, and the purchaser holds the land. or other property in trust for the person whose money paid for the same, whether the trust was created by writing, or vests merely in parol. If a part only of the purchase-money is paid by the person claiming the benefit of the trust, the resulting trust is limited to the amount so paid, even though he subsequently pays the balance, or offers to pay it, unless a note or other obligation is given for the bal
Sch. & Lef. 603; Burke v. Length, 3 J. & L. 193; Longworth v. Taylor, 1 McLean, (U. S. C. C.) 395; Miller v. Bear, 3 Paige, (N. Y.) Ch. 466; Waters v. Travis, 9 Johns. (N. Y.) 450; The New Barbadoes Toll Bridge Co. v. Vreeland, 4 N. J. Eq. 157. In Coulson v. Walton, 9 Pet. (U.S.) 62, a special performance was decreed fortyfour years after an action might have been brought for that purpose by the vendee. It was held that the statute would be good in all cases in equity by analogy, when at law it would have been held good under similar circumstances; that a legal VOL. II. -5
title could only be barred by adverse possession, and, therefore, an equitable title could only be barred in the same way.
1 Hemming v. Zimmerschitte, 4 Tex. 159; Mitchell v. Shepperd, 13 id. 484; Holman v. Criswell, 15 id. 394; Vardeman v. Lawson, 17 id. 10; Newson v. Davis, 20 id. 419.
2 Havens v. Bliss, 26 N. J. Eq. 363; Cutler v. Tuttle, 19 id. 549; Stratton v. Dialogue, 16 id. 70.
8 Baldwin v. Campbell, 8 N. J. Eq.
ance; and if the consideration is paid by two or more persons jointly, a trust results in favor of each, to the extent of the consideration furnished by each.2 The rule is well-settled that the trust must result at the time of the execution of the deed, and cannot be raised by matters subsequent thereto, and it is under this latter rule that the trust is restricted to the amount of the purchase-money actually furnished by the person claiming the benefit of the purchase at the time of or before the execution of the conveyance, as the trust must result at the very instant the deed is executed, or it cannot result at all.1
1 Depeyster v. Gould, 3 N. J. Eq. 474; Baldwin v. Campbell, ante.
2 Cutler v. Tuttle, ante.
3 Tannard v. Little, 23 N. J. Eq. 264. 4 Davis v. Wetherell, 11 Allen (Mass.), 15; Barnard v. Jewett, 97 Mass. 87.
cuss the application of the statute to this class of securities, it is proper to ascertain the relation which the parties occupy to the property covered by the mortgage. Strictly speaking, by the conveyance the mortgagee is invested with the legal title to the estate, while the mortgagor retains only the equitable title, which gives to him the right to reinvest himself with the legal title upon performance of the conditions imposed by the conveyance. In other words, the mortgagee takes the legal title subject to a condition, unless, as is the case in some of the States, the statute regulates the character of the relative estates.
There is much confusion in the cases as to the precise relation of a mortgagor and mortgagee to the estate; but this confusion results mainly from a difference in the form of the mortgages under which the decisions have arisen, and in some instances from the peculiar provisions of statutes relating to the matter. A mortgagor is in an anomalous position, and in the language of PARKE, B.,1 "he can be described only by saying he is a mortgagor." LORD MANSFIELD, in a leading case,2 says: "A mortgagor is not properly tenant at will to the mortgagee, for he is not to pay him rent. He is only quodam modo. Nothing is more apt to con
1 Litchfield v. Ready, 20 L. J. Exch. 51.
2 Moss v. Gallimore, Doug. 279.
found than a simile. When the court or counsel call a mortgagor a tenant at will, it is barely a comparison. He is like a tenant at will." The mortgagor has sometimes been treated as a tenant at will to the mortgagee, or as a mere tenant at sufferance; but at the present day, until condition broken and foreclosure, a mortgagor is treated, both at law and in equity, as the legal owner of the estate, the mortgage being only a security, and the mortgagee having only a lien upon the land, as a security for his debt.1
But in some of the States it is held that a mortgage in fee passes both the legal and equitable estate, defeasible by the performance of the condition according to its legal effect. The preponderance of authority, however, relative to ordinary mortgages, is in favor of the doctrine that the title remains in the mortgagor, at least until after condition broken (and in many of the States until after foreclosure); and
1 Elfe v. Cole, 26 Ga. 197; Casborne v. Scarfe, 1 Atk. 603; Jackson v. Lodge, 36 Cal. 28; Thayer v. Cramer, 1 McCord (S. C.) Ch. 395; McMillan v. Richards, 9 Cal. 365; United States v. Athens Armory, 35 Ga. 344; Fay v. Cheney, 14 Pick. (Mass.) 399; Caruthers v. Humphrey, 12 Mich. 270; Bryan v. Butts, 27 Barb. (N. Y.) 503; Hall v. Savill, 3 Iowa, 37. But in some of the States the legal title is held to pass for some purposes. Thus, in Glass v. Ellison, 9 N. H. 69, it was held that, for the protection of the interests of the mortgagee, and in order to give him the full benefits of his security, the legal estate passes, but that for other purposes the mortgage is in general held to operate only as a mere security for the debt. See also, to same effect, Clark v. Rayburn, 1 Kan. 281. In many of the States, as between the mortgagor and mortgagee, it is held that the title passes, but not as to third persons. Terry v. Rosell, 32 Ark. 478.
2 Blaney v. Bearce, 2 Me. 132; Briggs v. Fish, 2 D. Chip. (Vt.) 100; Carter v. Taylor, 3 Head (Tenn.), 30; Erskine v. Townsend, 2 Mass. 495; Wood's Landlord & Tenant, 183 et seq.
8 Whitmore v. Shiverick, 3 Nev. 288; Jackson v. Lodge, 36 Cal. 28; McMillan, v. Richards, 9 id. 365; Goodenow v. Ewer, 16 id. 461; Boggs v. Hargrave, id. 559; Fogarty v. Sawyer, 17 id. 589; Dutton v. Warshauer, 21 id. 609; Bludworth v. Lake, 33 id. 265; Davis v. Anderson, 1 Ga. 176; Rayland v. Justices,
&c., 10 id. 65; Elfe v. Cole, 26 id. 197; United States v. Athens Armory, 35 id. 344; Seals v. Cashier, 2 Ga. Dec. 76; Hall v. Savill, 3 Iowa, 37; Chick v. Willetts, 2 Kan. 384; Caruthers v. Humphrey, 12 Mich. 270; Bryan v. Butts, 27 Barb. (N. Y.) 503; Thayer v. Cramer, 1 McCord (S. C.) Ch. 395.
In Alabama, a mortgage is regarded as possessing a dual nature, bearing one character in a court of law and another in a court of equity, but the legal estate is treated as remaining in the mortgagor until condition broken, when it at once vests in the mortgagee, leaving only an equity of redemption in the mortgagor. Welsh v. Phillips, 54 Ala. 309. In Arkansas, the legal estate, as between the mortgagor and mortgagee, is treated as being in the latter, but as to third persons it is in the mortgagor. Terry v. Rosell, 32 Ark. 478; Collins v. Torry, 7 Johns. (N. Y.) 278; Blanchard v. Brooks, 12 Pick. (Mass.) 47. In Kansas, Life Association v. Cook, 20 Kan. 19; Michigan, Wagar v. Stone, 36 Mich. 364; Nebraska, Harley v. Estes, 6 Neb. 386; California, Jackson v. Lodge, ante; Georgia, Rayland v. Justices, 10 Ga. 65; Nevada, Whitman v. Shiverick, 3 Nev. 288; and, indeed, in most of the States, a mortgage is held to be a mere security, vesting no estate in the mortgagee until after foreclosure, Myers v. White, 1 Rawle (Penn.) 353; State v. Laval, 4 McCord (S. C.), 336; Cheever v. Railroad Co., 39 Vt. 363; while in Rhode Island, Connecticut, New Hampshire, Minnesota, Indiana, North