This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Philips v. Rothwell, 4 Bibb. (Ky.) 33; Millett v. Lagomdrsino, 107 Cal. 102, 38 Pac. 308; Gee v. Hatley, 114 Ark. 376, 170 S. W. 72; editorial notes 9 Columbia Law Rev. 461, 22 Harvard Law Rev. 604; 7 Mich Law Rev 592.
88a. Frazer v. Naylor, 1 Mete, (Ky.) 593; Neilson v Qrignon, 85 Wis.550. 56 N. W. 890.
89. Ante, Sec. 68.
90 Cuyim v. Jones' Lessee, 2 Gill. & J. (Md.) 173; Lyebrook
- (b) Trustee and cestui que trust. The possession of the trustee under an express trust is ordinarily not adverse to the cestui que trust,91 But although the possession of the trustee is originally not adverse, it becomes so in ease he repudiates the trust by unequivocal words or acts, and such repudiation is brought to the notice of the cestui que trust.92
In the case of a constructive trust, which is recognized by a court of equity for the purpose of relief against fraud,93 the possession of the holder of the legal title is ordinarily adverse to the person who v. Hall, 73 Miss. 509, 19 So. 348; Carson v. Broady, 56 Neb. 648, 71 Am. St. Rep. 691, 77 N. W. 80; Jackson v. Cams, 20 Johns. (N. Y.) 301; Taylor v. Kelly, 3 Jones Eq. (56 N. Car.) 240; Leport v. Todd, 32 N. J. L. 124; Nessley v. Ladd, 29 Ore. 354, 45 Pac. 904; Whaley v. Whaley, 1 Speer Law (S. C.) 225. 40 Am. Dec. 594; Brandon v. Bannon, 38 Pa. 63; Duke v. Harper, 6 Yerg. (Tenn.) 280, 27 Am. Dec. 462; Flannagan v. Pearson, 61 Tex. 302; Fahey v. Kaies - Tex. Civ. - , 181 S. W. 782; Sherman v. Champlain Transportation Co., 31 Vt. 162; Emerick v. Tavener, 9 Gratt. (Va.) 220, 58 Am. Dec. 217; Swann v. Young, 36 W. Va. 57, 14 S. E. 426.
In New York the statute provides that the holding of a tenant shall not be adverse till twenty years after the expiration of the term. See Whiting v. Edmunds, 94 N. Y. 309.
91. Seymour v. Freer, 8 Wall. (U. S.i 202. 19 L. Ed. 306; Cruse v. Kidd, 195 Ala. 22, 70 So. 166; Watson v. Sutro, 86 Cal. 500, 24 Pac. 172, 25 Pac. 64; Meacham v. Bunting, 156 111. 586, 47 Am. St. Rep. 239, 28 L. R. A. 618; Dunn v. Wheeler, 86 Me. 238, 29 Atl. 985; Hatt v. Green, 180 Mich. 383, 147 N. W. 593; Kane v. Bloodgood, 7 Johns. Ch. 125; Miller v. Bingham, 36 N. C. 423, 36 Am. Dec. 58; Williams v. First Presbyterian Soc. in Cincinnati, 1 Ohio St. 478; Smith v. Mcelyea, 68 Tex. 70, 3 S. W. 258; Redford v. Clarke, 100 Va. 115, 40 S. E. 630.
92. Willison v. Watkins, 3 Pet. 42, 52; Schlessinger v. Mallard, 70 Cal. 326, 11 Pac. 728; Terry v. Davenport, 185 Ind. 561, 112 N. E. 998; Mcguire v. Nugent, 103 Mo. 161, 15 S. W. 551; Stanton v. Helm, 87 Miss. 287, 39 So. 457; Lamberton v. Youmans, 84 Minn. 109, 86 N. W. 894; Congregational Soc. etc. v. Newing-ton, 53 N. H. 595; Boydstun v. Jacobs, 38 Nev. 175, 147 Pac. 447; Williams v. Cincinnati First Presby. Church, 1 Ohio St. 478; Long v. Cason, 4 Rich. Eq. 60; Fennell v. Loague, 107 Tenn. 239, 63 S. W. 1121.
93. Ante, Sec. 108(a).
Is asserting the fraud.94 That is, the statutory period within which one must seek to be relieved against another's fraud is not extended by reason of the fact that such fraud has resulted in placing the legal title to land in the wrongdoer, and that the court, in relieving against the fraud, does so by declaring him to hold in trust for the person defrauded. But if the fraud arises from the repudiation of a promise or undertaking to hold the land for the benefit of another, the statute does not begin to run until the repudiation actually occurs, and knowledge thereof is brought home to the person entitled to assert the fraud.95 And the view, adopted in many states, that the statute of limitations does not run against a right of action based on fraud, until the fraud is discovered, would frequently operate to extend the time for the assertion of a constructive trust.96
To what extent, in the case of a resulting trust. that is, a trust implied in accordance with presumed intention,97 the possession of the trustee is to be regarded as adverse or not adverse to the person beneficially entitled, the cases are not entirely clear. It has been decided in a number of cases that, when the trust resulted from the payment of a consideration by one person for property conveyed to another, the possession of the latter was not adverse to the person making the payment until there was an explicit re pudiation of the trust, reference being made, however, in some of these cases, to the fact that the circumstances showed an acknowledgment by the former of the existence of a trust.98 When the title is taken in the other's name with a fraudulent intention on the part of such other, the trust is to be regarded as a constructive rather than a resulting trust, and the statute would run at least from the time of the discovery of the fraud."
94. Lewis v. Hawkins, 23 Wall. 119; Hunter v. Dennis, 112 111. 568, Terry v. Davenport, 185 Ind. 561, 112 N. E. 998; Kennedy v. Kennedy, 25 Kan. 151; Edwards v. University, 21 N. C. 325. 30 Am. Dec. 170; Church v. Winton, 196 Pa. St. 107. 46 Atl. 363.
95. Odell v. .Moss. 130 Cal.
62 Pac. 555; Carr v. Craig, L38 Iowa, 526, 116 N. W. 720; Newts v. Topfer, 121 Iowa, 133, 96 V W. 905.
96. Markley v. Camden Safe Deposit & Trust Co., 74 N. J. Eq 279. 69 Atl. 1100.
97. Ante,Sec. 107.
In case the trustee under an express trust transfers the legal title to a third person, who takes with notice of the trust, or who pays no consideration, the cestui que trust may assert the trust as against such transferee.1 The possession of such transferee for the statutory period has been regarded as sufficient to bar the rights of the cestui que trust, in some cases on the ground that his possession is adverse to the original trustee,2 applying the rule that the cestui que trust is barred when the trustee is barred,3 while in other cases the cestui que trust has been regarded as barred on the theory that the possession of the transferee of the legal title is that of a constructive trustee, and is consequently adverse to the person equitably entitled.4 In