legal estate cannot be taken from the trustees while the annuities are subsisting.

384.

7. Where there is a cestui que trust in tail, he may 1 Ab. Eq. call on the trustee to convey the legal estate to him. 2 P. Wms. And no one can afterwards prevent him from barring 134. the entail; or the trustee may join with the cestui que Allington, But where the cestui que 1 Bro. R. 72. trust is only entitled to an estate tail, the trustee

trust in barring the entail. But where the cestui

ought not to convey to him in fee simple.

Boteler v.

8. Infant trustees are enabled, by statute 7 Ann. Tit. 32. c. 2. c. 19, to convey lands whereof they are seised in trust, under the direction of the Court of Chancery.

9. It is a rule in equity, that no act of a trustee Their Acts shall prejudice the cestui que trust; nor shall the for- shall not prejudice the bearance of trustees, in not doing what it was their Trust.

3 P. Wms.

duty to have done, affect the cestui que trust; since 215. in that case it would be in the power of trustees, by 2-706. delaying to do their duty, to affect the rights of

other persons. Wherefore the rule in all such cases

is, that what ought to have been done shall be con- Allenv.Sayer, sidered as done. And so powerful is this rule, as to Tit.35.c. 14. alter the very nature of things; to make money land,

and land money.

10. There is however one exception to this rule; ExceptionConveyance for if a trustee be in the actual possession of the without estate, which however is a case that seldom happens; Notice. and conveys it, for a valuable consideration, to a purchaser, who has no notice of the trust, such purchaser will be entitled to hold the estate against the

Case.

cestui que trust: because confidence in the person is Millard's still deemed necessary to a trust; and it is a rule in 2 Freein. 43. equity, that an innocent person shall not, in general, have his title impeached.

278.

11. If a trustee mortgages the estate to a person P. Wis. who has no notice of the trust, the mortgagee will be

Bovey v.
Smith,

allowed to hold against the cestui que trust; because mortgagees are considered as purchasers; and as having a specific lien on the estate: whereas it has been observed that estates held in trust are not subject to the specialty or judgement debts of the

trustee.

12. If a trustee sells to a stranger, who has no Tit. 35. c. 14. notice of the trust, and afterwards repurchases from the stranger for a valuable consideration, he will again become liable to the trust.

Mansell v.
Mansell,

Tit. 16. c. 7.
3 Atk. 238.

2 Salk. 680.

1 Vern. 149.

Where Purchasers are

formed.

"If a

13. Where a purchaser has notice of the trust, though he pays a valuable consideration, he shall be subject to it. For, as Lord Hardwicke says, person will purchase with notice of another's right, his giving a consideration will not avail him; for he throws away his money voluntarily, and of his own

free will."

14. So if a trustee conveys an estate to a stranger, without any consideration; though the person to whom it is conveyed, has no notice of the trust, yet he will be liable to it. *

15. We have seen that a purchase from a trustee, bound to see with notice of the trust, is a fraud, even though the Trusts per- purchaser should pay a valuable consideration. Where a trustee is authorized to sell, such a purchase cannot be fraudulent: there are, however, many cases in which a purchaser, with notice of a trust, is answerable for the trustee, and therefore bound to see that his money is applied in execution of the trust.

Dunch v.
Kent,

1 Vern. 260.
Spalding v.
Shalmer,
Id. 301.

16. Thus, where a person conveys or devises his estate to trustees, upon trust to sell it, for payment of certain debts specified in the deed or will, or in

* With respect to trustees appointed to preserve contingent remainders, their duty will be stated in Tit. 16. Remainder.

any schedule thereto annexed; a purchaser will in that case be bound to see that his money is applied in payment of those debts.

17. So where a decree was made for the sale or mortgage of an estate; with a direction that the money should be applied in payment of debts which were ascertained by the report of the Master; Lord Hardwicke held, that a purchaser under that decree, was bound to see to the application of his money.

18. Legacies stand upon the same ground, as specified or scheduled debts; therefore a purchaser must see that his money is applied in payment of them.

19. It is the same where estates are conveyed or devised to trustees, upon trust to sell, and apply the money for any particular or specific purpose: a purchaser of the estate, with notice of the trust, is bound to see to the application of the money. For if the purposes to which it is directed are not fulfilled by the trustees, the estate will still be liable to them, in the hands of the purchaser.

20. Lands were vested in trustees by act of par- Cottrell v. liament, to raise a sum of money to rebuild a printing 2 Vern. 5. Hampton, house. It was decreed that the mortgagee was bound

to see the money applied accordingly.

21. It is a very common practice to direct the money arising from the sale of lands, to be invested in the funds in the names of the trustees, upon several trusts; nor does it appear to have ever been judicially settled, to what extent a purchaser is bound to see to the performance of such a trust. In a case of this kind, the late Mr. Booth says " I am of Cases and Opin. V. 2. opinion that all that will be incumbent on the pur- 114. chaser to see done in this case, will be to see that the trustees do invest the purchase money in their own names in some of the public stocks or funds, or

66

Where they

are not bound,

1 Vern. 261. Smith v. Guyon,

1 Bro. R. 186. Williamson v. Curtis,

3 Bro. R. 96. Amb. 677.

6 Ves. 654.n.

on government securities. And in such case, the purchaser will not be answerable for any non-application (after such investing of the money) of any monies which may arise by the dividends or interest, or by any disposition of such funds, stocks, or securities: it not being possible that the testator should expect, from any purchaser, any further degree of care or circumspection, than during the time that the transaction for the purchase was carrying on. And therefore the testator must be supposed to place his sole confidence in the trustees. And this is the settled practice in these cases.

And I have often advised so

much, and no more, to be done; and particularly in the case of the trustees under the Duchess of Marlborough's will." Mr. Wilbraham is said to have been of the same opinion.

22. On the other hand, it has long been fully established, that where lands are vested in trustees to be sold, for payment of debts generally, without any specification of such debts, a purchaser is not bound to see to the application of his purchase money.

23. It is the same where lands are charged with the payment of debts generally. Lord Eldon has said, 7323. that a charge is a devise of the estate, in substance and effect, pro tanto, upon trust to pay the debts. And in another case he said, it had been long settled, that where a man by deed or will charges, or orders an estate to be sold, for payment of debts generally, and then makes specific dispositions, the purchaser is not bound to see to the application.

24. It has been stated that a purchaser is bound to see to the payment of legacies. But where a trust is created for the payment of debts and legacies, a purchaser is not bound to see that his money is applied in payment of the legacies,

Skicorne,

25. A person devised his real estates to trustees, Rogers v. upon trust to sell the same, and out of the money Amb. 188. arising from such sale to pay his own and his father's debts and legacies. Lord Hardwicke said—" The subjecting the estate to the payment of legacies, will not make the purchaser answerable for the disposition of the money; because the legacies cannot be paid without the debts: and they are not specified."

Abbot,

1 Bro. K.

186. n. 2d ed.

26. In a modern case Lord Thurlow said, that Jebb. v. where debts and legacies are charged on lands, the purchaser will hold free from the claim of the legatees; for not being bound to see to the discharge of debts, he cannot be expected to see to the discharge of legacies; which cannot be paid till after the debts.

27. Where a person devised his real estates to his executors, to be sold for payment of debts, in case

Culpeper v.

Aston, 2 Cha.
Ca. 115.

contra.

his personal estate should prove deficient; it was Vide Fearn's held that a purchaser was not bound to inquire Opin. 121. whether there was a deficiency of the personal estate or not. For if the personal estate was sufficient, yet he should hold the lands purchased, against the heir; and the heir should have his remedy against the executor. But if there be a lis pendens between the heir and executor, to have an account; it is sufficient notice in law, without actual notice of the suit; so that a purchaser takes it at his peril.

28. It has been long settled, that where lands are 1 Vern. 303. conveyed to trustees, in trust to sell and pay debts, if more is sold than is sufficient to pay the debts, that shall not turn to the prejudice of the purchaser; for he is not obliged to enter into the account; and the trustees cannot sell just as much as is sufficient to pay the debts.