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 .
88. This view has been well presented by Professor Charles A. Huston in his "Enforcement of Decrees in Equity", on which this paragraph is to a great extent based. See also the reviews of the above work by Professor Wesley N. Hob field in 25 Yale Law Journal at p. 166, and by Professor
Edgar N. Durfee in 14 Mich Law Rev. at p. 219, and the article by Professor Austin Wakeman Scott in 17 Coulmbia Law Rev. at p. 269. A like view was previously asserted in Salmond Jurisprudence (4th Ed.) 228; Pomeroy, Eq. Jur. Sec. 975, and by Professor Roscoe Pound in 26 Harv. Law Rev. at p. 464.
87. Post Sec.Sec. 114.
88. In re Nisbet & Pott's Contract (1905) 1 ch.. 391; (1906) 1 ch. 386. See post Sec..396.
88a. Post Sec.Sec. 214, 215.
89. Post Sec. 242.
[ Sec. 103 his heirs as does a legal estate, and is usually subject to his debts.90 If land is given in trust for one and the heirs of his body, the cestui may bar the entail as may one having a legal estate in fee tail.91 The question whether a trust has been created in land is regarded as depending on the law of the situs of the land, a view which involves the assumption that a trust involves a claim as regards the land itself, and not merely a claim against a person.92 And other considerations of a like bearing which may be mentioned, are that the Rule in Shelley's case has always been applied to limitations in trust to the same extent as legal limitations93 and that the applicability of the Rule against Perpetuities to such limitations appears to be beyond question.94
In support of the contrary view, that the cestui que trust is the owner merely of an equitable obligation against the trustee, and has no right in rem as regards the land, emphasis has been laid on the consideration that the cestui has no right which he can assert as against a bona fide purchase for value; but that this is not conclusive as against the cestui's ownership appears by reference to the various cases in which even the legal owner loses all right in favor of a bona fide purchaser for value, by reason for instance, of the recording or registry laws, of the fact that the sale takes place in market overt, or that the thing transferred is a negotiable instrument.95
In spite, however, of the array of recent authority in support of the view that the cestui que trust has rights in rem as regards the land, that he, in other words, is properly an owner of the land, there is, it is conceived, some room for question in this connection. One argument on which the advocates of such view appear to lay considerable stress involves the assumption thai a right is in rem if it can be asserted against indeterminate persons, and the inference that the cestui's right, because it can be asserted against all persons claiming under the trustee, other than bona fide purchasers for value, must be in rem. This, however, it is believed, involves the giving of too broad a definition to the expression right in rem. A right which is otherwise a right in personam is not to be regarded as a right in rem because it may be asserted as against all persons claiming under the original obligor. A lessor can assert a liability on the lessee's covenants as against all persons to whom the leasehold interest may he assigned, but it would hardly be claimed that the lessor has a right in rem as to the performance of the covenants. Nor would it be said that one who owns a rent in fee simple is in any sense an owner of the land out of which the rent is payable because he may recover a personal judgment for the rent against any person who acquires the land.95a Furthermore, a right in rem is properly a right available against the world at large, that is, against any person, or approximately any person.95b But a cestui que trust has, in the ordinary case, no right as regards the land which he can assert as against the world at large. The trustee and not the cestui que trust is regarded as the proper party to bring suit against third persons in regard to the land, and this applies not only to legal actions,96 such as
90. Post Sec. 113.
91. 1 Hayes, Conveyancing (5th Ed.) 146; Doe d. Cadogan v. Ewart, 7 Ad. & El. 636.
92. Professor Scott, 17 Columbia Law Rev. at p. 287. Professor
Eeale, 20 Harv. Law Rev. at p. 382.
93. Post Sec. 153.
94. Post Sec. 183.
95. Huston, Enforcement of Decrees in Equity, 126 et seq.
95a. And so it has been suggested that one having a right of entry for condition broken, a claim for admeasurement of dower, or an option right to purchase land, cannot well be regarded as having a right in rem in the land because he has a right enforcible against subsequent purchasers. See article by Professor Harlan F. Stone, 17 Columbia Law Rev. at p. 471.
95b. Austin, Jurisprudence (3d Ed.) 380. Holland, Jurisprudence (9th Ed.) 138. Salmond, Jurisprudence (4th Ed.) 205.
96. 1 Ames, Cas. Trusts, 255, 256. Gates v. Bennett, 33 Ark. 475, ejectment,97 but also, it seems, in most jurisdictions, to proceedings in equity against third persons in regard thereto, which are properly brought by the trustee without joinder of the cestui que trust, unless the "elations between the trustee and the cestui que trust are involved therein, or unless the cestui cannot, in the particular case, be regarded as adequately represented by the trustee.97a A person may no doubt have a right seem, a power of legal redress as against indeterminate persons, irrespective of whether another determinate person pursues a particular line of conduct.
Rice v. Brown, 77 111. 549; Denton v. Denton, 17 Md. 403; Davis v. Charles River Branch R. Co. 11 Cush. (Mass.) 506; Lancaster v. Connecticut Mut. Life Ins. Co., 92 Mo. 460, 1 Am. St. Rep. 739, 5 S. W. 23; Mordecai v. Parker, 3 Dev. (N. C.) 425; Hexter v. Schneider, 14 Ore. 184, 12 Pac. 668; Pennsylvania R. Co. v. Duncan, 11 Pa. 352, 5 Atl. 742. But see Yates v. Big Sandy Ry. Co., 28 Ky. L. Rep. 206, 89 S. W. 108.