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 .
97. Goodtitle v. Jones, 7 Term R. 45; Langdon v. Sherwood, 124 U. S. 74, 31 L. Ed. 344; Green v. Jordan, 83 Ala. 220, 3 Am. St. Rep. 711, 3 So. 513; Buhne v. Chism, 48 Cal. 467; Fischer v. Eslaman, 68 111. 78; Barrett v. Hinckley, 124 111. 32. 7 Am. St. Rep. 331, 14 N. E. 863; Paisley v. Holzshu, 83 Md.325, 34 Atl. 832; Chapin v. First Univer-salist Soc. 8 Gray (Mass.) 580. Nalle v. Parks, 173 Mo. 616, 73 S. W. 596. Kinney v. Dexter, 81 Wis. 80, 51 N. W. 82. See cases cited 1 Ames, Cas. Trusts, 255.
A cestui que trust in possession may bring trespass for injury to his possession, but this is based on his possession, and not on his equity. 1 Ames, Cas. Trusts, 251.
In Pennsylvania, where there is no court of chancery, and ejectment is regarded as an equivalent to some extent for a bill in equity, the cestui que trust may bring ejectment. Peebles v. Reading, 8 Serg. & R. (Pa.) 491; McCullough v Staver, 119 Pa. St. 432, 13 Atl. 440. See also, as to the effect of state statutes as changing the rule, Merrill v. Dearing, 47 Minn. 137, 49 N. W. 693; Duffey v. Rafferty, 15 Kan. 9; Laughlin v. Fariss, 7 Okla. 1, 50 Pac. 254, State v. Johanson, 26 Wash. 668, 67 Pac. 401; Glover v. Stamps, 73 Ga. 209, 54 Am. Rep. 870. But see Brown v. Brown, 96 Ga. 578; 23 S. E. 840. In North Carolina, the cestui que trust may bring ejectment, although there is no statutory authority therefor. Condry v. Cheshire, 88 N. C. 375; Johnson v. Prairie, 91 N. C. 159.
97a. 1 Ames, Cas. Trusts, 260, 261; Carey v. Brown, 92 U. S. 171, 23 L. Ed. 469; Vettedlein v. Barnes 124 U. S. 171, 31. L. Ed. 401; Ash-ton v. Atlantic Bank, 3 Allen (Mass.) 217; Canada v. Darnel, 175 Mo. App. 55, 157 S. W. 1032; Stevens v. Bosch, 54 N. J. Eq. 59, 33 Atl. 293; Bockes v. Hathorn, 78 N. Y. 222. In re Straut, 126 N. Y. 201, 27 N. E. 259; Horsley v. Faw-cett, 11 Beav. 565.
In a suit in equity by a third peron in regard to the property subject trust, it is ordinarly sufficient to make the trustee a in rem without a power to assert it by suit in his own name, by reason of a personal disability in that re-gard, but to say that one who is under no personal disability has a right in rem when he can assert his right against only a single individual and persons claiming under such individual98 appears to involve something of an extension of the conception of rights in rem. Even though it be conceded, in accordance with occasional decisions or dicta, that in special cases, such as a refusal of the trustee to sue,99 his consent to suit by the cestui,1 his complicity in the breach of trust,2 or lack of a trustee,3 the cestui may institute proceedings in equity against a third person, making the trustee a codefendant, it is still somewhat difficult to say that the cestui has a right in rem as regards the land. In order to have a right in rem one should have, it would defendant without joining the cestui que trust, if the latter can be regarded as adequately represented by the trustee. 1 Ames, Cas. Trusts, 261; 2 Perry, Trusts, Sec.Sec. 873-877; Vetterlein v. Barnes, 124 U. S. 171, 31 L. Ed. 401; Beals v. Illionis, M. & T. R. Co. 133 U. S 290, 33 L. Ed. 608; Tucker v. Zimmerman, 61 Ga. 599; Jewett v. Tucker, 139 Mass. 566; 2 N. E. 680; Redin v. Branham, 43 Minn. 283; 45 N. W. 445. Contra, Ebell v. Bursinger, 70 Tex. 120; 8 S. W. 77; Biron v. Scott, 80 Wis. 206, 49 N. W. 747.
98. Professor Hohfield says (25 Yale Law Journ, at p. 168) that "such comparatively few persons as actually know of a particular trust are under actual, or present, equitable duties not to accept conveyance of the legal title from the trustee; and no doubt the cestui's correlative rights against these third persons could be vindicated by securing an injunction against any such threatened acceptance of conveyance." The present writer ventures to question whether a court of Equity, in the case of a trust in land, would do more than direct the trustee not to make the conveyance.
99. Bailey v. Seldon, 112 Ala. 593, 20 So. 854, Western R. Co. v. Nolan, 48 N. Y. 513; Robinson v. Adams, 81 N. Y. App. Div. 20, 80 N. Y. Supp. 1098, 179 N. Y. 558, 71 N. E. 1139; Hilliard v. Eiffe, L. R. 7 H. L. 39, 43, note 2; Gandy v. Gandy, 30 Ch. Div. 57, 73; Howden v. Yorkshire Miner's Assn. (1903) 1 K. B. 308, 341, 345.
1. Grant v. Phoenix Life Ins. Co. 121 U. S. 105, 30 L. Ed. 905.
2. Neal v. Bleckley 51 S. Car. 506, 29 S E. 249.
3. Zimmerman v. Makepeace, 152 Ind. 199, 52 N. E. 992.
Another consideration adverse to the unqualified acceptance of the view that the rights of the cestui que trust is in the nature of a right in rem is the rule, recognized in substantially all jurisdictions,4 that he is barred of all claim as against third persons by reason of the running of the statutory period of limitations against the trustee, even though the cestui himself was not sui juris at the time of the accrual of the cause of action. If the cestui has an independent right in rem, he should be able to enforce such right without reference to whether the trustee's right of redress has been barred by lapse of time. That the rule referred to is in direct conflict with the view that the cestui has a right in rem appears to be conceded by advocates of such view.5 And the rule itself is referred to as one of the unfortunate results of the contrary view, that the trustee is the owner of the property to the exclusion of the cestui.
Upon the whole, in the present state of the authorities, it appears that there is something to be said in support of the suggestion, made by an eminent scholar,6 that the case of a trust is sui generis, that, in other words, while the cestui que trust has more than a mere right in personam, his right is not in the nature of a true right in rem. As to whether the cestui que trust can" properly be termed an owner of the land, that would seem to depend on what we mean by the term "owner." That he has rights in the land closely analo4. 2 Perry, Trusts, Sec.Sec. 858, 859; 1 Ames, Cas. Trusts, 271 note; Lewellin v. Mackworth, 2 Eq. Cas. Abr. 579. Meaks v. Olpherts, 100 U. S. 564, 25 L. Ed. 735; Bryan v. Weems, 29 Ala. 423, 65 Am. Dec. 407; Chase v. Cartright 53, Ark. 358 14 S. W. 90; 22 Am. St. Rep.
207; Dennis v. Bint, 122 Cal.39, 54 Pac. 578, 68 Am. St. Rep. 17; Collins v. Lofftus, 10 Leigh (Va.) 5, 34 Am. Dec. 725, note.
5. Huston, Enforcement of Decrees in Equity 142.
6. Sir Frederick Pollock in 28 Law Quart. Rev. at p. 297.
Gous to the rights of a legal owner is unquestionable, and if we are willing to concede that one may be an owner without having a right of action, although otherwise sui juris, to assert his ownership as against persons interfering therewith, the cestui may properly be so termed.
- (c) Cestui's rights recognized only in equity.
The rights of the cestui que trust are ordinarily recognized in equity only, except as this may be changed by statutory provisions. Accordingly, he cannot enforce at law a liability against the trustee for breach of trust.7 Nor can he set up his equitable title as a defense in an action of ejectment by the trustee,8 except where equitable defenses to actions at law are allowed by statute, as is, at the present day, frequently the case.9 And even where, by reason of legislation, all courts take cognizance of trusts, yet the rights of the cestui are still equitable in their nature, so as to give rise to defenses applicable only to equitable rights and to be remediable only by equitable remedies.10