SECT. VII. But if there be a guardian or trustee for an infant, to whom lands are descended or de- Resulting and by virtue of any lease for one or more life or lives, or for years absolute or determinable on the dropping of one or more life or lives, or by copy of court-roll or customary tenure for life or lives, shall be purchased under the powers of this act, by or with the proper monies of the person or persons for the time being, beneficially entitled to the rents and profits thereof, and where such lease or leases shall be subject to any will or settlement, so that such person or persons shall not, at the time of purchasing the reversion thereof, be entitled to the absolute interest under such lease or leases, and such person or persons shall be bound by any covenant, engagement, or condition, to renew the lease at the accustomed periods, with his, her, or their own monies, or with or out of the rents and profits of the estate, then, and in every such case the immediate estates and interests under such subsisting lease or leases, as well as the reversion expectant thereon, shall, under the direction of the said last-mentioned commissioners, be charged with and made subject to the repayment of the principal money advanced for the purchase of such reversion, with lawful interest, to or for the benefit of the person or persons advancing the same, his, her, or their executors, administrators, or assigns; but if the person or persons so, for the time being, beneficially entitled to the rents and profits of the estates comprised in such subsist. ing lease or leases as aforesaid, shall not be liable to any covenant, engagement, or condition, to renew the lease at the accustomed periods with his or her own monies, or with or out of the rents and profits of the estate, then, and in such case, the reversion only expectant on the subsisting lease or leases, shall, under such direction as aforesaid, be charged and made subject for the benefit of such person or persons, with the payment of the principal money advanced for the purchase thereof, together with lawful interest, to accumulate from the time of such purchase, till the expiration of the subsisting lease, after, deducting out of such interest the annual rent (if any) which shall be payable during the lease, and which shall have been purchased with the reversion, unless the person or persons advancing such money shall be desirous that the same, together with the interest, may be made a charge on the sub constructive trusts. SECT. VII. vised, but the title is really in a third person, Resulting and and the trustee or guardian buy in the title of constructive the third trusts. this shall not be taken to be person; a trust for the infant; for such trustee or guardian is at liberty to purchase it as well as any other person: and in O'Herlihy v. sisting lease or leases; in which case the immediate estates and interests under the same, as well as the reversion expectant thereon, shall be charged and made subject to the payment of such principal money and interest, in like manner as if such person or persons had been bound to renew the lease; and subject to such charges, so to be made respectively as aforesaid, the fee-simple of such manors, messuages, lands, tenements, or other hereditaments, shall be settled, under the like direction, for the benefit of the person or persons so purchasing the same, and of such other persons as would have been entitled under such will or settlement to the benefit of any renewed lease or leases for the time being, and so as to be enjoyed by them for such respective estates and interests, as, considering the alteration of the tenure, shall appear to the said commissioners most correspondent with the in-tention of such will or settlement: provided always, that where the immediate estates or interest, under any such lease or leases, shall be charged with and made subject to the payment of the principal money advanced for the purchase of the reversion, the persons successively entitled to the rents and profits of the manors, messuages, lands, tenements, and hereditaments, comprised in the subsisting lease or leases respectively, shall be made chargeable with the interest accruing during his or her estate therein; and that no greater arrear than for one year shall be recoverable against any person who shall become entitled in remainder for interest accrued during the estate or term of any person or persons entitled to any preceding estate or interest in the premises: provided also, that it shall be lawful for the said commissioners to direct an application to be made to the Court of Chancery in a summary way, for obtaining direc tion as to the mode of settling any such reversion, or the equity of redemption thereof, where the case shall appear to them to be attended with difficulty." 52. C Lesley's case, 2 Freem. Hodges, lord Redesdale has observed, "that Secr. VII. "the rule is established, in order to keep Resulting and "trustees in the line of their duty, but not trusts. "for the purpose of being an injury to a third person, if the principal injury be to him." VIII. I shall now explain the system of trusts, as it more immediately refers to the person and acts of cestuique trust. constructive SECT. VIII. of trusts, as more immediately referring to the person and acts of ces Who may be (1.) Any person, who is capable of taking tuique trust. the legal estate directly and immediately to trustee, himself, may acquire the equitable or beneficial interest in the same estate". tees. (2.) Cestuique trust may bring his bill in Actions and Chancery against his trustee for breach of suits by trustrust, or to account; but he has no remedy against him at laws. Neither can cestuique trust recover upon his equitable title in the courts of law as against a third person: but it is necessary, in order to support or obtain his rights, that he should sue in the name of his d 1 Schoales and Lefroy, 123. e See before 86. Note, the king may be cestuique trust, Middleton v. Spicer, 1 Bro. C. C. 201.; but an alien cannot, 3 Cha. Rep. 35. I apprehend, that a corporation cannot take as cestuique trust without a licence in mortmain. See Digby v. Cornwallis, 3 Cha. Rep. 72. Pol lard v. Downes, 2 Cha. Ca. 121. Sturt v. Mellish, 2 Atk. 612. Contra, 1 Eq. Ab. 334. (D.) note (a.) Doe v. Staples, 2 Term Rep. 684. Barnes v. Crow, 4 Bro. C. C. 2. (223.) SECT. VIII. trustees. Yet it is said, that a tender to cestuique trust of money due upon bond, and ately referring a refusal, is a good plea to an action of debt and acts of ces- upon the bond by his trusteek. Of trusts, as more immedi to the person tuique trust. Cestuique trust in possession may vote at an election. Conveyances by cestuique trust. (221.) (3.) By the statute 7 Will. c. 25. s. 7. it is enacted, that no person shall be allowed to have any vote in election of members to serve in parliament, for or by reason of any trust estate or mortgage, unless such trustee or mortgagee be in actual possession, or receipt of the rents and profits of the same estate; but that the mortgagor, or cestuique trust in possession, shall and may vote for the same, notwithstanding such mortgage or trust. (4.) In the case of Packer and Wyndham', it is said, that every disposition of cestuique trust is binding upon the trustee in a court of equity; and even at law. But although the conveyance of cestuique trust is conclusive upon the trustee to the extent of the beneficial interest conveyed, yet a trust is not alienable by the rules of the common law, and I have, in a preceding part of this work, attempted to show, that cestuique trust can Ex parte Coysegame, 1 Atk. 191. k Lynch v. Clemence, Lutw. 179. ed. 1718. See the cases collected in note to pl. 2. 18 Vin. 303. as to the effect of a release by cestuique trust claiming under a bond or covenant. I Prec. Cha. 415. not convey the legal estate by virtue of the SECT. VIII. statute 1 Rich. 3. Of trusts, as more immediately referring to the person Conveyance trust in fee simple. (4. a.) In the transfer of equitable rights, and acts of cesit is usual in practice to adopt the species of tuique trust. conveyance applicable to the assurance of the by cestuique legal estate; as if a person be seised of the equitable estate in fee-simple, he usually conveys it by lease and release, or bargain and sale inrolled. But this is never absolutely necessary; and in case an equitable interest is sold, it is clear, that the mere payment of the purchase-money would operate as a transfer of it. by cestuisque or being mar (4. b.) But when the owner of an equitable Conveyances interest cannot, if such equitable interest were trust in fee-tail, converted into a legal estate, convey it with- ried women, out the aid of a fine or recovery, it will be necessary for him to use the same kind of assurance by matter of record in the transfer of his beneficial interest, as if it had been a legal estate; and therefore the equitable rights of tenants in tail and married women must be conveyed by fine or recovery. As to tenants in tail, it has been said, that Tenants in tail if the trustee, having the legal estate, joins with his cestuique trust, in making a feoffment with livery, it will destroy the equitable en T |