ante, § 42. Nor the Assignees of a Bankrupt. Squire v. Compton, 9 Vin. Ab. 227. Neither Jointure nor Curtesy barred by a Term. in fee during the coverture. That as to Vandebendy's being a purchaser, he was so with full notice of dower, and got in the term to protect himself against the dowress; and therefore having notice, was to be considered as a volunteer. The decree was reversed; and it was ordered that the plaintiff Lady Williams, having recovered dower at law, the trust term should not stand in her way in equity. 47. Lord Harcourt's doctrine has been fully assented to by Lord Hardwicke, who, in the case of Swannock v. Lifford, said, "If the husband dies, and there is a satisfied term continuing, the wife would be entitled to come into this Court, against the heir, to set that term out of the way, in order to have the benefit of her dower." 48. In a case in Chancery, 10 Geo. I., stated by Mr. Viner, the question was, whether the assignees of a bankrupt, by taking an assignment of a mortgage term, prior to the title of dower, should protect their estate from dower. It was insisted that the creditors and assignees stood only in the place of the bankrupt; and since such an assignment to the bankrupt himself, or his heir, would not protect the estate from dower, in the hands of the heir, neither should it protect the estate in the hands of the creditors of the bankrupt, or the assignees. That this differed the case from that of Radnor v. Vandebendy, where it was held that such a prior term should protect the estate from dower, in the hands of a purchaser. It was decreed that the widow should be let into her dower. 49. It has been stated, that the Court of Chancery will set aside a term for years in favour of a jointress. A tenant by the curtesy is also entitled to the aid of equity against a trust term, assigned to attend the Tit. 7. c. 2. inheritance, and set up against him by the heir. 50. The plaintiff, as tenant by the curtesy, brought Snell v. Clay, his bill to be relieved against a term for years, that was assigned in trust to attend the inheritance, and had been set up by the heir at law, in bar to his title. Decreed, that the term should not be made. use of against him by the heir at law. 2 Vern. 324. Term is a 51. In consequence of the doctrine stated in ch. ii. Where a § 37. if a defendant in ejectment can show that there Bar in Ejectis an outstanding term for years, vested in a third ment. person, to the possession of which the plaintiff is not entitled, he cannot recover. So where a defendant can show that there is an outstanding term, of which the trusts are not completely satisfied; this will also operate as a bar to the plaintiff. 1 Term R. 52. Lord Mansfield held, that though there was Doe v. Pegg, an unsatisfied outstanding term, yet if the plaintiff 758. n. admitted the charge for which the term was created, and only claimed subject to such charge, the trus tees of the term not asserting their right, he should recover. This doctrine was, however, rejected by Doev.Staple, Lord Kenyon; who held that a satisfied term might 2 Term R. be presumed to have been surrendered. But that an unsatisfied term, raised for the purpose of securing an annuity, might be set up, during the life of the annuitant, as a bar to a plaintiff in ejectment, even though he claim subject to the charge. 684. bourne, 58. In another case, Lord Kenyon directed a jury Doe v. Syto presume, that an old satisfied term was surren- 7 Term R. 2. dered; saying, that he grounded himself upon the doctrine laid down by Lord Mansfield in the case of Lade v. Holford; which was not, as had been sup- Bull. N P. posed, that an ejectment might be maintained upon a mere equitable title, for that would remove ancient 110. ante, c. 2. § 40. Goodtitle v. Jones, 7 Term R. 47. Doe v. Scott, 11 East. 478. land-marks in the law, and create great confusion; but that in all cases where trustees ought to convey to the beneficial owner, he would leave it to the jury to presume, where such presumption might be reasonably made, that they had conveyed accordingly; in order to prevent a just title from being defeated by , a matter of form. 54. In a subsequent case, he said, that though, under certain circumstances, a jury might presume a satisfied term to have been surrendered; yet if no such presumption was made, and it appeared in a special verdict in ejectment, that such a term was still outstanding in a trustee, who was not joined in bringing the ejectment, the cestui que trust could not recover. 55. Where an old mortgage term of 1,000 years, created in 1727, was recognized in a marriage settlement of the owner of the inheritance in 1751, by which a sum of money was appropriated to its discharge; and no further notice of it was had till 1802; when a deed to which the then owner of the inheritance, and the representatives of the termors were parties, reciting that the term was still subsisting, conveyed it to others, to secure a mortgage: Mr. Baron Thompson, at the trial, and the Court of K. B. upon a motion to set aside the verdict, held that it could not be presumed to have been surrendered against the owner of the inheritance, who was interested in upholding it. 9. Their Acts shall not preju- 39. Bound to reimburse the Cestui A Trustees. TRUST being considered, in some respects, as Estate of similar to a use before the statute 27 Hen. VIII. it follows that trustees are nearly in the same situation as feoffees to uses formerly were. But the Court of Chancery, in the exercise of their jurisdiction over trusts, has avoided the mischiefs that arose from uses. 2. One of the principal of these was, that the estates of the feoffees to uses became subject to all their legal incumbrances. But upon the establishment of trusts it was settled, that in equity the estate of the 1 P. Wms. trustees shall not be subject to the specialty or judge- 278. 2 318. Noell v. Jevon, ment debts of the trustee: to the dower of his wife, 2 Freem. 43. or the curtesy of the husband of a female trustee. Hard, 465. 3. Where a trustee is attainted of felony, the legal Carter R. 67. estate is forfeited; but the cestui que trust is entitled to relief in equity. In the case of attainder for treason it does not appear to have been settled Lane, 39.54. whether the cestui que trust has any remedy against the Crown. And where a trustee dies without heirs, by which the lands escheat, it is doubtful whether the lord is subject to the trust. Duty of 4. With respect to the duty of trustees, it is still held, in conformity to the old law of uses, that pernancy of the profits, execution of estates, and defence of the land, are the three great properties of a trust. So that the Court of Chancery will compel trustees, 1. To permit the cestui que trust to receive the rents and profits of the land; 2. To execute such conveyances as the cestui que trust shall direct. 3. To defend the title of the land in any court of law or equity. 5. The necessity that the trustee should execute conveyances of the land, arises from this circumstance; that as the legal estate is vested in him, and he is considered, in the courts of law, as the real owner, it follows, that although the cestui que trust can ante, c. 2. § 6. alone dispose of his equitable interest, yet he cannot convey the legal estate, without the concurrence of the trustee. But where the cestui que trust has the absolute interest in the trust, he can compel the trustee to convey the legal estate, either to himself, or to any other person in fee simple. 2 P. Wms. 134. 6. The cestui que trust is only entitled to a conveyance where the whole of the trust belongs to him. For if lands are devised to trustees, in trust to pay annuities; and subject thereto, in trust for A. B.; the 1 |