Upon the execution of the notes and the title-bond between Lewis and Hawkins, Lewis held the legal title as trustee for Hawkins; and Hawkins was a trustee for Lewis as to the purchase-money. Hawkins was cestui que trust as to the former and Lewis as to the latter. [1] The seller under such circumstances has a vendor's lien, which is certainly not impaired by withholding the conveyance. The equitable estate of the vendee is alienable, descendible, and devisable in like manner as real estate held by a legal title. The securities for the purchase-money are personalty, and in the event of the death of the vendor, go to his personal representative. [2] It does not appear that the title-bond authorized Hawkins to take possession, or that he did so. If there were no such authority, and he entered into possession, he held as a licensee or tenant at will. [3] The vendee cannot in such cases dispute the title of his vendor any more than the lessee can dispute that of his lessor. [4] Any other person coming into possession under the vendee, either with his consent or as an intruder, is bound by a like estoppel. [5] Hamiter, having bought and assumed the payment of the purchase-money stipulated to be paid by Hawkins, took the property subject to the same liabilities, legal and equitable, to which it was subject in the hands of Hawkins. [6]
The discharge in bankruptcy released Hawkins from personal liability for his debt, but the statute of limitations cannot avail to protect the land from the vendor's lien upon it, for the purchase-money which Hawkins agreed to pay, and which Hamiter, when he bought the land, assumed and agreed to pay for him.
We have already shown that as between Lewis and Hawkins there was a trust which embraced the purchase-money and fastened itself upon the land. The debt did not affect his assignee personally, but as we have shown also it continued to bind the land in all respects as if the transfer had not been made. The trust was an express one. Its terms and purposes were evinced by the title-bond, and the promissory notes to which that instrument referred. 'As between trustee and cestui que trust, in the case of an express trust, the statute of limitation has no application, and no length of time is a bar. Accounts have been decreed against trustees extending over periods of thirty, forty, and even fifty years. The relations and privity between trustee and cestui que trust are such that the possession of one is the possession of the other, and there can be no adverse possession during the continuance of the relation. . . . A cestui que trust cannot set up the statute against his co-cestui que trust, nor against his trustee. These rules apply in all cases of express trusts.' [7]
'As between trustees and cestui que trust, an express trust, constituted by the act of the parties themselves, will not be barred by any length of time, for in such cases there is no adverse possession, the possession of the trustee being the possession of the cestui que trust.' [8]
The same principle applies where the cestui que trust is in possession. He is regarded as a tenant at will to the trustee. 'Therefore, until this tenancy is determined there can be no adverse possession between the parties.' [9] The relation once established is presumed to continue, unless a distinct denial, or acts, or a possession inconsistent with it are clearly shown. [10]
In many of the cases it is held that the lien of the vendor under the circumstances of this case is substantially a mortgage. [11] It is well settled that the possession of the mortgagor is not adverse to that of the mortgagee. In the case last cited it is said that to apply the statute of limitations 'would be like making the lapse of time the origin of title in the tenant against his landlord.' That the remedy upon the bond, note, or simple contract for the purchase-money is barred in cases like this, in no wise affects the right to proceed in equity against the land. As in respect to mortgages, the lien will be presumed to have been satisfied after the lapse of twenty years from the maturity of the debt, but in both cases laches may be explained and the presumption repelled. [12] The principles upon which this opinion proceeds are distinctly recognized in Harris v. King. [13] That case alone would be decisive of the case before us. The considerations which apply where the vendor in such cases resorts to an action of ejectment were examined by this court in Burnett v. Caldwell. [14]
The bill avers the tender of a deed by the complainant to Hawkins before the bill was filed. The answer of Hawkins denies the allegation. The testimony of Lewis sustains the bill; that of Hawkins the answer. The averment is not established. Except as to the costs the point is of no significance. If the tender of a deed had been properly made, and there had been no unjustifiable resistance to the taking of the decree by the complainant, to which he is entitled, he would have been required to pay all the costs. There being a contest, and it appearing that a tender would have been without effect, the costs must abide the result of the litigation. [15]
There is manifest error in the decree, but the bill is defective in not making the heirs-at-law of Hamiter parties, unless there is some statutory provision of the State of Arkansas which obviates this objection.
If necessary the bill can be amended in the court below.
DECREE REVERSED, and the cause REMANDED with directions to proceed
IN CONFORMITY WITH THIS OPINION.
Notes edit
- ↑ 1 Story's Equity, § 789; 2 Id. § 1212; 1 Sugden on Vendors and Purchasers, 175; Swartwout v. Burr, 1 Barbour, 499; Champion v. Brown, 6 Johnson's Chancery, 402.
- ↑ 2 Story's Equity, § 1212.
- ↑ Suffern v. Townsend, 9 Johnson, 35; Dolittle v. Eddy, 7 Barbour, 75.
- ↑ Whiteside v. Jackson, 1 Wendell, 422; Hamilton v. Taylor, 1 Littell's Select Cases, 444.
- ↑ Jackson v. Walker, 7 Cowan, 637.
- ↑ 1 Story's Equity, § 789; 1 Sugden on Vendors and Purchasers (Perkins's ed.), 175; Champion v. Brown, 6 Johnson's Chancery, 402; Muldrow's Executors v. Muldrow's Heirs, 2 Dana, 387; 2 Harris & Johnson, 64; Shipman v. Cook, 1 Green's Chancery, 254.
- ↑ Perry on Trusts, § 863.
- ↑ Hill on Trustees, 264*.
- ↑ Id. 266*.
- ↑ Whiting v. Whiting, 4 Gray, 236, Creigh's Heirs v. Henson, 10 Grattan, 231; Spickerneln v. Hotham, Kay, 669; Garard v. Tuck, 65 English Common Law, 249; Same Case, 8 Manning, Granger & Scott, 231; Decouche v. Savetier, 3 Johnson's Chancery Reports, 190; Anstice v. Brown, 6 Paige, 448; Kane v. Bloodgood, 7 Johnson's Chancery, 90.
- ↑ Lingan v. Henderson, 1 Bland's Chancery, 236; Moreton v. Harrison, Id. 491; Relfe v. Relfe, 34 Alabama, 504.
- ↑ Moreton v. Harrison, supra.
- ↑ 16 Arkansas, 122.
- ↑ 9 Wallace, 290.
- ↑ Keisselbrack v. Livingston, 4 Johnson's Chancery, 144; Hanson v. Lake, 2 Younge & Collier, 328.
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