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 .
98. Long v. King, 117 Ala. 423, 23 So. 534; Haney v. Legg, 129 Ala. 619, 87 Am. St. Rep. 81, 30 So. 34; Plass v. Plass, 122 Cal. 3, 15; Norton v. Bassett, 154 Cal. 411, 129 Am. St. Rep. 162, 87 Pac. 894; Corr's Appeal from Com'rs, 62 Conn. 403, 26 Atl. 478;' Warren v. Adams, 19 Colo. 515, 36 Pac. 604; Reynolds v. Sumner, 126 111. 58, 1 L. R. A. 327, 9 Am. St. Rep. 523; Zunkel v. Colson, 109 Iowa, 695, 81 N. W. 175; In re Mahin's Estate, 161 Iowa, 459, 143 N. W. 420; Smith v. Smith, 132 Iowa, 700, 119 Am. St. Rep. 581, 109 N. W. 194; Lufkin v. Jakeman, 188 Mass. 528, 74 N. E. 933; Condit v. Maxwell, 142 Mo. 266, 44 S. W. 467, (but see Reed v. Painter, 145 Mo. 341, 46 S. W. 1089); Hanson v. Hanson,
78 Neb. 584, 111 N. W. 368; Crowley v. Crowley, 72 N. H. 241, 56 Atl. 190; Fawcett v. Fawcett, 85 Wis. 332, 39 Am. St. Rep. 844, 55 N. W. 405.
99. Kennedy v. Kennedy, 25 Kan. 151; Cox v. Menzing, - (Miss.) - 30 So. 41; Reed v. Painter, 145 Mo. 341, 46 S. W. 1089.
1. Ante, Sec. 114.
2. Merriam v. Hassam, 14 Allen (Mass.) 516, 92 Am. Dec. 795; Smilie v. Biffle, 2 Pa. St. 52, 44 Am. Dec. 156; Mccrary v. Clements, 95 Ga. 778, 22 S. E. 675.
3. Ante. Sec. 506, note 9.
4. Robinson v. Pierce, 118 Ala. 273, 45 L. R. A. 66, 72 Am. St. Rep. 160, 24 So. 984; Smith v. Dallas Compress Co., 195 Ala.
At least one case the conclusion that the beneficiary is barred is based upon the theory that the transfer of the legal title by the original trustee involves a repudiation of the trust by him, which starts the running of the statute in favor of him and of any person claiming under him.5 It has occasionally been decided that the possession of the transferee is adverse as against the beneficiary of the trust even though the latter is not sui juris6 and that it is adverse even as against one equitably entitled in remainder only,7 decisions which are evidently based on the theory, above referred to, that the beneficiary is barred by reason of the bar of the original trustee. To regard, however, an innocent beneficiary as barred by his trustee's failure to take legal action to set aside a wrongful transaction in which the latter knowingly participated does not seem entirely in accord with equitable principles. And the rule that the cestui is barred of relief as against the transferee of the trustee merely be-cause the statute has run as against the trustee himself has been occasionally asserted to be inapplicable in favor of one who thus colluded with the trustee in a breach of trust.8 The bar of the cestui que trust may,
534, 70 So. 662; Nougues v. Newlands, 118 Cal. 102, 50 Pac. 386; Stillwell v. Leavy, 84 Ky. 379, 1 S. W. 590 (semllr): Cummings v. Stovall, 6 Lea (Tenn.) 679; Bedford v. Clarke, 100 Va. 115, 40 S. E. 630. See Newman v. Newman, 60 W. Va. 371, 7 L. R. A. N. S. 370. In Norton v. Bassett, 154 Cal. 411, 129 Am. St. Rep. 162, 97 Pac. 894, it was decided that if the legal title passes by descent on the death of the trustee, the heirs taking possession are constructive trustees merely, in favor of whom the statute runs. 5. Peters v. Jones, 35 Iowa,
512; Williams v. First Presbyterian Soo. 1 Ohio St. 478.
6. Mccrary v. Clements, 95 Ga. 778, 22 S. E. 675; Wilson v. Louisville Trust Co., 102 Ky. 522, 44 S. W. 121; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065.
7. Robinson v. Pierce, 118 Ala. 273 45 L. R. A. 66, 72 Am. St. Rep. 160, 24 So. 984.
8. Chase v. Cartright, 53 Ark. 358, 22 Am. St. Rep. 207, 14 S. W. 90; Parker v. Hall, 2 Head. (Tenn.) 641; Elliott v. Landis Mach. Co., 236 Mo. 546.139
S. W 356, distinguishing Ewing v. Shannahan, 113 Mo. 188, 20 it is submitted, be most satisfactorily based upon the theory that the transfer by the the original trustee involves a repudiation of the trust, which sets the statute in motion as against him and those claiming under him, so soon, and not until, it becomes known to the cestui que trust.
The possession of the cestui que trust under an express trust is prima facie not hostile to the trustee, though it may become so by the assertion by him of a claim in his own right.10 The possession of one whose beneficial interest exists by reason of a resulting trust implied from his payment of the purchase price has been regarded as adverse to the person to whom he had the legal title conveyed.11
- (c) Licensor and licensee. One who goes on land as a licensee merely has no possession of the land,12 and consequently the statute does not begin to run in his favor unless and until he in effect takes possession by denying that he is in the position of a licensee.13
- (d) Principal and agent. Whether one who is upon another's property in the capacity of agent has, strictly speaking, possession of the property
S. W. 1065 on the ground that in the earlier case the purchase was not directly from the trustee. See also Deans v. Gay, 132 N. Car. 227, 43 S. E. 643.
9. As to the necessity of knowledge on the part of the beneficiary, see Marshall's Estate, 138 Pa. St. 285, 22 Atl. 24; Jones v. Godwin, 10 Rich. Eq. 226; Neal v. Bleckley, 51 S. C. 506, 29 S. E. 249; editorial note 11 Columbia Law Rev. 686.
10. Burrows v. Holt, 20 Conn. 464; Winn v. Strick a.nd, 34 Fla. 610, 16 So. 606; Mcclenahan v.
Stevenson, 118 Iowa, 106, 91 N. W. 925; Matthews v. Ward, 10 G. & J. (Md.) 443; Whiting v. Whiting, 4 Gray (Mass.) 236; Newmarket v. Smart, 45 N. H. 103; Marr's Heirs v. Gilliam, 1 Cold. (Tenn.) 488.
11. Ripley v. Bates, 110 Mass. 161.
12. Ante, Sec. 349(a).
13. Sanitary Dist. of Chicago v. Allen, 178 111. 330, 53 N. E. 109; Blaisdell v. Portsmouth, G. F. & C. R. Co., 51 N. H. 483; Luce v. Carley, 24 Wend. (N. Y.) 451, 35 Am. Dec. 637; Curtis appears to be open to doubt.13a But assuming that he can be regarded as having possession, his possession is prima facie not adverse to the owner, his principal.14 Hie may, however, acquire an adverse possession as against the latter by a repudiation of the relation of agency, or assertion of a claim to the property in his own right, so soon as the principal is affected with knowledge thereof.15