3 P. Wms. 211, 24 Eng. Reprint, 1033, 21 Eng. Rul. Cas. 81, an early case holding to the contrary.

United States.-Meeks v. Olpherts (1880) 100 U. S. 564, 25 L. ed. 735, affirming (1874) 3 Sawy. 206, Fed. Cas. No. 9,393.

Alabama.-Colburn

V. Broughton (1846) 9 Ala. 351; Bryan v. Weems (1856) 29 Ala. 423, 65 Am. Dec. 407; Molton v. Henderson (1878) 62 Ala. 426; Love v. Love (1880) 65 Ala. 554; Clark v. Snodgrass (1880) 66 Ala. 233; Smith v. Gillam (1885) 80 Ala. 296; Gindrat v. Western R. Co. (1892) 96 Ala. 162, 19 L.R.A. 839, 11 So. 372. And see the reported case (CRUSE V. KIDD, ante, 36).

V. Foley

California. McLeran v. Benton (1887) 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879; Patchett v. Pacific Coast R. Co. (1893) 100 Cal. 505, 35 Pac. 73. Georgia. Pendergrast (1850) 8 Ga. 1; Worthy v. Johnson (1851) 10 Ga. 358, 54 Am. Dec. 393; Wingfield v. Virgin (1874) 51 Ga. 139; Brady V. Walters (1875) 55 Ga. 25; Varner v. Gunn (1878) 61 Ga. 54; Dean v. Central Cotton Press Co. (1880) 64 Ga. 670; Ford v. Cook (1884) 73 Ga. 215; Knorr v. Raymond (1884) 73 Ga. 749; Crawley v. Richardson (1886) 78 Ga. 213; Salter v. Salter (1887) 80 Ga. 178, 12 Am. St. Rep. 249, 4 S. E. 391; McCrary v. Clements (1895) 95 Ga. 778, 22 S. E. 675.

Illinois.-Waterman Hall v. Waterman (1906) 220 Ill. 569, 4 L.R.A. (N.S.) 776, 77 N. E. 142.

Kentucky. Barclay v. Goodloe (1886) 83 Ky. 493; Stillwell v. Leavy (1886) 84 Ky. 379, 1 S. W. 590; Willson v. Louisville Trust Co. (1897) 102 Ky. 522, 44 S. W. 121; Edwards v. Woolfolk (1856) 17 B. Mon. 376; Maddox v. Allen (1859) 1 Met. 495.

Maryland.-Crook v. Glenn (1869) 30 Md. 55; Weaver v. Leiman (1880) 52 Md. 708; Stoll v. Smith (1916) 129 Md. 164, 98 Atl. 530.

Massachusetts.-Merriam

V. Hassam (1867) 14 Allen, 516, 92 Am. Dec.

795; Atty.-Gen. v. Federal Street Meeting-House (1854) 3 Gray, 1.

Mississippi. - Nelson V. Ratliff (1895) 72 Miss. 656, 18 So. 487.

Missouri. Ewing v. Shannahan (1892) 113 Mo. 188, 20 S. W. 1065; Walton v. Ketchum (1898) 147 Mo. 209, 48 S. W. 924.

New Jersey.-Prudden v. Lindsley (1878) 29 N. J. Eq. 615, reversing (1877) 28 N. J. Eq. 378; Snyder v. Snover (1893) 56 N. J. L. 24, 27 Atl. 1013.

New York. Brown V. Doherty (1904) 93 App. Div. 190, 87 N. Y. Supp. 563.

North Carolina.-Blake v. Allman (1860) 58 N. C. (5 Jones. Eq.) 407; Herndon v. Platt (1862) 59 N. C. (6 Jones, Eq.) 327; Swann v. Myers (1876) 75 N. C. 585; Clayton v. Cagle (1887) 97 N. C. 300, 2 Am. St. Rep. 293, 1 S. E. 523; King v. R1ew (1891) 108 N. C. 696, 23 Am. St. Rep. 76, 13 S. E. 174; Kirkman v. Holand (1905) 139 N. C. 185, 51 S. E. 856; Cameron v. Hicks (1906) 141 N. C. 21, 7 L.R.A. (N.S.) 407, 53 So. 728; Wellborn v. Finley (1859) 52 N. C. (7 ones, L.) 228.

Pennsylvania. Smilie V. Biffle (1845) 2 Pa. St. 52, 44 Am- Dec. 156; Maus v. Maus (1876) 80 Pa. 194; Thompson v. Carmichael 1888) 122 Pa. 478, 15 Atl. 867.

South Carolina.-Waring v. Cheraw & D. R. Co. (1881) 16 S. C 416; Benbow v. Levi (1897) 50 S. C. 120, 27 S. E. 655; Young v. McNeill (1904) 78 S. C. 143, 59 S. E. 986.

Tennessee. Goss v. Singleton (1858) 2 Head, 67; Woodward v. Boro (1886) 16 Lea, 678; Watkins v. Specht (1870) 7 Coldw. 585; Williams v. Otey (1847) 8 Humph. 563, 47 Am. Dec. 632; Shelby v. Shelby (1813) Cooke, 179, 5 Am. Dec. 686; Ferguson v. Kennedy (1824) Peck, 321, 14 Am. Dec. 761; Wooldridge v. Planters' Bank (1853) 1 Sneed, 297; Johnston v. Hoyall (1911) 2 Tenn. C. C. A. 163.

Texas.-Collins v. McCarty (1887) 68 Tex. 150, 2 Am. St. Rep. 475, 3 S. W. 730; Appel v. Childress (1909) 53 Tex. Civ. App. 607, 116 S. W. 129.

Utah.-Jenkins v. Jensen (1901) 24

In Lewellin v. Mackworth (1740) 2 Eq. Cas. Abr. 579, 8, 22 Eng. Reprint, 488, it was said: "The rule that the Statute of Limitations does not bar a trust estate holds only as between cestui que trust and trustees, not betwen cestui que trust and trustee on one side and strangers on the cther, for that would be to make the statute of no force at all, because there is hardly any estate of consequence without such trust, and so the act would never take place; therefore, where a cestui que trust and his trustee are both out of possession for the time limited, the party in possession has a good bar against them both."

In Clayton v. Cagle (1887) 97 N. C. 300, 2 Am. St. Rep. 293, 1 S. E. 523, the court, holding that where the creator of the trust subsequently deeded the land to a third person, who in good faith entered and exercised exclusive and adverse proprietary rights over the land for the requisite period, both the trustee and the cestui que trust were barred from attacking his title, stated the rule as follows: "The annexation of trusts to the legal estate cannot arrest the operation of the rule which, under the circumstances, ripens an imperfect into a perfect title; since, during all this period, the defendant was exposed to the action of the true owner, and his negligence in bringing it tolls his entry and bars his right of action. The in

terest of the cestui que trust is, as against strangers to the deed, under the protection of the trustee, and shares the fate that befalls the legal estate by his inaction or indifference."

In Smilie v. Biffle (1845) 2 Pa. St. 52, 44 Am. Dec. 156, the court, after declaring the rule that, where the cestui que trust and trustee are both out of possession for the prescribed time, the party in possession acquires a good title against both, said: "Indeed, the wonder is that so plain a proposition should ever have been doubted. A party obtains an inceptive title by an adverse holding, subject

to be defeated only by the entry of the owner of the legal estate at any time within twenty-one years. And the trustee may be compelled by the cestui que trust to enter, so as to avoid the adverse possession; and the cestui que trust may himself enter as a defeasor. . . The title of Nicholson, the purchaser, is manifestly defective. But Nicholson took possession of the premises in pursuance of the contract, and held the same for upwards of twenty-one years. He therefore held adversely to both cestui que trust and trustee, and, consequently, obtained by the Statute of Limitations an indefeasible title, which cannot now be disturbed or gainsaid. The Statute of Limitations is emphatically a statute of repose. When the act com

mences running it continues to run, as is well settled. It would strike me to be an anomaly that the owner of the legal estate should be barred, and that the owner of the equitable title, whether his interest be an interest in possession or by way of remainder, should nevertheless be entitled to enter. Equity follows the law, and courts of equity have adopted the Act of Limitations by analogy. If a trustee is negligent of his duty (as he may be), the cestui que trust is not without remedy."

The reason for the rule was stated in Edwards v. Woolfolk (1865) 17 B. Mon. (Ky.) 376, as follows: "The principle is, that the legal cause of action is in the trustee, and it is his duty to sue a stranger who has obtained the possession of the trust property, and is holding it adversely; and the cestui que trust may require him to perform this duty; and, upon his refusal, may bring an action in equity against the trustee and the person in the possession of the property, for its restoration to the custody of the trustee. For this reason, the equitable right is barred by the statute whenever the legal right is barred."

In Molton v. Henderson (1878) 62 Ala. 426, it was said: "The reason of the rule is, that the trust exists only as between trustee and cestui que trust; as to strangers, the legal and equitable estate are one; and a bar of

the legal comprehends a bar of the equitable estate."

Mere ignorance on the part of the cestui que trust of the existence of his rights in the trust property will not serve to stop the running of the statute. Waterman Hall v. Waterman (1906) 220 III. 569, 4 L.R.A. (N.S.) 776, 77 N. E. 142; Merriam v. Hassam (1867) 14 Allen (Mass.) 516, 92 Am. Dec. 795. In the case last cited it was said: "It is agreed as a fact that she had no actual knowledge of the creation or existence of a trust in her favor. But while this would be an answer to a defense based upon laches or acquiescence merely, we cannot find in it a sufficient objection to the operation of the limitation. The deed which created the trust was upon record, and she had the means of ascertaining her rights under it by the use of due diligence."

In Stoll v. Smith (1916) 129 Md. 164, 98 Atl. 530, it was insisted that the rule did not apply to a trust estate created by order of court, but only to such an estate created by deed. Holding that the mode of appointment of the trust was immaterial, the court said: "It is sufficient to say in regard to this that none of the adjudicated cases draw any such distinction, and no sufficient reason appears why a different standard should be applied in one case than in the other."

b. Application of rule.

Possession under invalid conveyance by trustee.

Where a purchaser of trust property from a trustee, under a deed which is void for want of strict conformity to the law, goes into possession of the property, and, without objection on the part of the trustee, holds the property openly and exclusively as his own for a sufficient period of time to acquire title by adverse possession, neither the trustee nor the cestui que trust can attack it. Clark v. Snodgrass (1880) 66 Ala. 233; Brady v. Walters (1875) 55 Ga. 25; Varner v. Gunn (1878) 61 Ga. 54; Knorr v. Raymond (1884) 73 Ga. 749; Waterman Hall v. Waterman (1906) 220 Ill. 569, 4 L.R.A. (N.S.) 776, 77 N. E. 142;

Brown v. Doherty (1904) 93 App. Div. 190, 87 N. Y. Supp. 563.

Thus, in Stoll v. Smith (1916) 129 Md. 164, 98 Atl. 530, it was held that a purchaser of trust property from the trustee, whose deed was defective for want of ratification by the court, who entered into possession and held the land adversely for the time limited, acquired a good title as against both the trustee and the cestui que trust.

In Herndon v. Pratt (1862) 59 N. C. (6 Jones, Eq.) 327, wherein it appeared that property held in trust by an executor was improperly conveyed to a purchaser who took possession and held it for the required period of time to acquire title by adverse possession, the court, holding that the cestui que trust as well as the trustee was barred, said: "Statutes of Limitation, and statutes giving title by adverse possession, would be of little or no effect, if their operation did not extend to cestuis que trust as well as trustees who hold the title for them, and whose duty it is to protect their rights. If, by reason of neglect on the part of the trustees, cestuis que trust lose the trust fund, their remedy is against the trustees; and, if they are irresponsible, it is the misfortune of the cestuis que trust, growing out of the want of forethought on the part of the maker of the trust, under whom they claim."

In Ewing v. Shannahan (1892) 113 Mo. 188, 20 S. W. 1065, it appeared that, after land was conveyed in trust for the benefit of the grantor and his heirs, the trustee reconveyed the land to the grantor, who subsequently conveyed it by general warranty deed to third parties, who held the same for a sufficient period to acquire title by adverse possession. Holding that such possession was a bar both to the trustee and the cestui que trust, the court said: "In the case now in hand the plaintiff took an equitable contingent remainder by force and effect of the deed of trust. Until the death of the donor, the entire legal title, a title in fee simple, was vested in the trustee. It was the duty of the trustee to protect the title for those who should take upon the death of the donor, as

well as for the donor during his life. To this end the entire legal title was vested in the trustee, and the right of possession was in him. As the trustee held the legal fee-simple title and the right of possession for all of the beneficiaries, he was the proper person to sue for possession; and we think the case comes within the rule that, where the trustee is barred by lapse of time, the beneficiaries are also barred, and that, too, though the beneficiaries are minors. That which bars the legal title here bars the equitable title. The acceptance of a trust like this is not a meaningless affair, and, if the trustee has made breach of the trust and wronged the plaintiff, the remedy is against the trustee. The Statute of Limitations is one of repose, and should be applied in this case."

Similarly, where a trustee, joining with the cestui que trust, mortgaged the trust estate and allowed the mortgagee to enter into possession of the property and, ignoring the mortgage, to hold it adversely and as his own for a sufficient period of time to acquire title by adverse possession, it was held that the trustee and the cestui que trust were both barred from asserting any right of redemption in the property. Crook v. Glenn (1869) 30 Md. 55.

In Patchett v. Pacific Coast R. Co. (1893) 100 Cal. 505, 35 Pac. 73, it was held that where a trustee conveyed to a railroad a right of way through the trust, property, in violation of the terms of the trust, the railroad, taking possession and holding it adversely for the period limited, acquired a good title, both as against the trustee and the cestuis que trust.

In Chase v. Cartright (1890) 53 Ark. 358, 22 Am. St. Rep. 207, 14 S. W. 90, wherein it appeared that land was sold by one of several executors who held it in trust, and the purchaser entered and held possession for the statutory period, it was held that both the trustee and the cestui que trust were barred.

A trustee is not estopped from bringing an action to recover property because of the fact that he was a party to the instrument conveying the prop

erty; and therefore, the right of action remaining in the trustee, he and the cestui que trust are barred by his failure to act within the proper time. Meeks v. Olpherts (1880) 100 U. S. 564, 25 L. ed. 735; Chase v. Cartright (Ark.) supra; Worthy v. Johnson (1851) 10 Ga. 358, 54 Am. Dec 393; Stillwell v. Leavy (1886) 84 Ky. 379, 1 S. W. 590; Willson v. Louisville Trust Co. (1898) 102 Ky. 522, 44 S. W. 121; Smilie v. Biffle (1845) 2 Pa. St. 52, 44 Am. Dec. 156.

In Meeks v. Olpherts (1880) 100 U. S. 564, 25 L. ed. 735, wherein it ap peared that the legal title to the trust property was vested in an administrator, who sold the same under an order of the probate court, which was attacked as void, the court held that, whether the sale was valid or not, the adverse possession on the part of the purchaser gave him a perfect title, and the fact that the sale was made by the administrator did not estop him from bringing an action to recover the property. On this point it was said: "Nor can it be said that either this right or this duty to sue for and recover possession of the lot was lost or abridged by his sale, as administrator, to the defendants. Instances are numerous of persons, making sales that are valid, avoiding them by the very act of bringing an action of ejectment. Such are the cases of infants and married women, who have made conveyances and received the consideration, whose acts are void or voidable by reason of infancy or of defective acknowledgment of the deeds."

But see Parker v. Hall (1859) 2 Head (Tenn.) 641, wherein it appeared that the guardian of certain minor children sold the property he held in trust for them. The court, holding that by reason of his making the bill of sale to the purchaser he was estopped from suing to recover the property, and therefore that the rule that adverse possession against the trustee bars also the cestui que trust, though an infant, did not apply, said: "The position that when the trustee is barred all the beneficiaries are barred, though they may be under disability, has no application here.

That doctrine only applies where the trustee could sue, but fails to do so, as where a stranger intrudes himself into the trust estate and holds wrongfully, and adversely, both to the trustee and the beneficiaries. In such a case, if the trustee fails to sue and is barred, the beneficiaries, though infants, etc., are also barred. But here George H. Parker, the trustee and owner of the legal estate, had estopped himself from suing by his bill of sale. He had turned against his wards, and united with the defendant in a breach of trust. The wrong was to them, not to him. He could not sue for or represent them. In such a case the beneficiaries can alone sue, and if they are under disability when the cause of action accrues, they will not be barred until they are allowed the time given in the statute after the disability is removed."

However, in two cases, wherein it appeared that the trustee had made or joined in the instrument conveying the trust property, the court, without discussing the question of estoppel, applied the general rule, and held that both the trustee and the cestui que trust were barred by the statute. Williams V. Otey (1847) 8 Humph. (Tenn.) 563, 47 Am. Dec. 632; Watkins v. Specht (1870) 7 Coldw. (Tenn.) 585.

In the case last cited, wherein it appeared that the adverse holder claimed title under a deed from the trustee and the life tenant and her husband, which was later declared void because of the improper appointment of the trustee, it was held that the purchaser had nevertheless acquired a good title by his adverse possession, which could not be attacked either by the trustee or the cestui que trust, the court saying: "Patterson took possession of the premises under his deed from E. F. Watkins, Mildred B. Watkins, and David T. Johnson, in November, 1850. This deed conveyed to him no title as against the legal estate of the trustee, or against the equitable interest in remainder of the complainants. But it was sufficient to constitute a color of title in Patterson, and under it he and his grantees held possession, claiming

title in fee simple, and adversely to the trustee, for more than seven years thereafter. The legal estate of the trustee was thereby barred, under our Statute of Limitations; and, under repeated decisions of this court, this operated as a bar to the equitable estate of the cestui que trust."

In Woodward v. Boro (1886) 16 Lea (Tenn.) 678, wherein it appeared that, after conveying certain land in trust, the grantor by another deed conveyed the same land to a third person, who entered into possession and held the land for a sufficient period to acquire title by adverse possession, it was held that the failure of the trustee to bring an action to recover the land barred both himself and the cestui que trust.

In Jenkins v. Jensen (1901) 24 Utah, 108, 91 Am. St. Rep. 783, 66 Pac. 773, it appeared that in a compromise settlement of a number of disputes the lot of land in question was given to the adverse claimant, who held it continuously and adversely for the statutory period. Because the agreement was never fully carried out the cestui que trust brought suit to recover the land, but it was held that, as the trustee had allowed the title to ripen by adverse possession, all parties were barred from further action.

Where it appeared that a mortgage had been given at the instance of a guardian and trustee to secure a debt due the estate of his wards, and that the mortgagor had afterwards conveyed the property to a third person, who held it adversely to all parties for the period of time required to ripen. into a perfect title, it was held that, the guardian being barred by his failure to act, the wards or cestuis que trust were also barred from attacking the title so acquired. Smith v. Gillam (1885) 80 Ala. 296.

Possession under conveyance by cestui que trust.

In Thompson v. Carmichael (1888) 122 Pa. 478, 15 Atl. 867, wherein it appeared that land held in trust for a married woman and her husband was conveyed by them, though without the joinder of their trustee, it was held that the purchaser, after adverse possession for the requisite period of