time, acquired a good title as against both the trustee and the cestuis que trust.

Possession under judicial sale.

Where a trustee stands by and allows a purchaser of the trust property at a sheriff's sale, made to satisfy an execution against a stranger to the trust, to take possession and hold it adversely for a sufficient period of time to ripen into title, he is barred from attacking the title thus acquired, and the cestui que trust holding the equitable title is also barred. Colburn v. Broughton (1846) 9 Ala. 351; Wellborn v. Finley (1859) 52 N. C. (7 Jones, L.) 228; Wooldridge v. Planters' Bank (1853) 1 Sneed (Tenn.) 297; Sheppards v. Turpin (1847) 3 Gratt. (Va.) 373.

Possession under conveyance by third person.

In Young v. McNeill (1907) 78 S. C. 143, 59 S. E. 986, it was held that a purchaser of trust property from the life tenant, who held it adversely for the required period, obtained a good title against both the trustee of the remainderman and the cestui que

trust.

In King v. Rhew (1891) 108 N. C. 696, 23 Am. St. Rep. 76, 13 S. E. 174, it was held that where the husband of the cestui que trust conveyed the trust property to a third person, who took possession and held it adversely for the time limited, the trustee was barred by his failure to bring an action to recover the property within the proper time, and that, the trustee being barred, the cestui que trust was also barred.

In Barclay v. Goodloe (1886) 83 Ky. 493, it appeared that a purchaser of trust property from two sons of the testator creating the trust took possession and held it adversely to all parties for a sufficient period to acquire a good title. The action was brought against the purchaser by the children. of a third son of the testator, claiming an interest in the trust estate, and it was insisted that the deed by the other two sons was unauthorized and void. It was held that, even if the deed were to be declared void, the trustee had lost his right to recover the land, by

failure to bring the action within the proper time, and that, the trustee holding the legal title being barred, the cestuis que trust were also barred, although they were laboring under the disability of infancy.

Possession by intruder.

In Snyder v. Snover (1893) 56 N. J. L. 20, 27 Atl. 1013, it was held that, where church trustees allowed an adverse user of a way across a corner of the trust property to be continued for fifty years, both they and the cestuis que trust were barred.

Similarly, in Prudden v. Lindsley (1878) 29 N. J. Eq. 615, eversing (1877) 28 N. J. Eq. 378, it was held that an uninterrupted and adverse public use of a highway over trust property for a period of twenty years would establish an easement, and both the trustee and cestui que trust would be barred; and this was true, although the trust was created for the benefit of a portion of the public.

In Benbow v. Levi (1897) 50 S. C. 120, 27 S. E. 655, wherein it appeared that a trustee, after bringing an action for the recovery of land held in trust, suffered a nonsuit and failed to bring a second action within the time prescribed by the statute, the court, holding that both the trustee and the cestui que trust were barred, stated the doctrine as follows: "One of the duties of a trustee is to hold the legal title, and it is his duty, if any interference is made by anyone with lands to which he holds the legal title, to prevent such interference ripening into any rights prejudicial to his cestui que trust. He has the power to act. Now, if such trustee, while holding the legal title, in order to protect the lands confided to him and to recover the same from one who is claiming it against him and his cestuis que trustent, brings an action against one wrongfully in possession, he is but doing his duty. But once he comes into court, he can throw about him no sacred shield to protect him and his suit against the rules of pleading and the ordinary risks in every respect, incident to a lawsuit. So, if a statute exists which says that in case of a nonsuit to an action brought for land that a second suit

must be brought in two years from the date of nonsuit, he must conform to it; and if such statute prescribes, as a condition precedent to such second suit, that the costs must be paid in the first, why, he must comply with the law. And if such trustee brings the second suit and is cast, his right of action in that regard is gone forever, and his cestuis que trustent must suffer the consequences. If an executor, or administrator, or committee of a lunatic, or a guardian of a tender infant has a chose in action properly in his hands belonging to the estate of his cestui que trust, and such personal representative allows time enough to elapse from maturity of the chose to bar a recovery thereon, and he brings an action thereon and fails to recover, his right of action is gone, and with his loss of such right, so goes that of his cestui que trust. So, as to land; if trustees who hold the legal title allow the Statute of Limitations to bar them, or a presumption of a grant to arise, the right of action for the land is barred and their cestuis que trustent are barred also."

In Love v. Love (1880) 65 Ala. 554, wherein it appeared that a person entered property adjoining her own, there being a dispute as to the correct boundary, and held the same openly and exclusively for the required period of time to acquire title by adverse possession, it was held that the trustee and the cestui que trust were both barred from asserting any interest in the property.

In Hibben v. Malone (1908) 85 Ark. 584, 109 S. W. 1008, wherein it appeared that a state issued a certificate of purchase of swamp land before a patent was issued to the state, the purchaser thus acquiring the equitable title, and the state standing in the position of trustee, charged with the duty of issuing a patent at the proper time, it was held that a person holding the land adversely for the prescribed period of time acquired a good title against all parties.

Where a surety on the bond of a trustee purchasing public lands caused the grant from the state to be made out in his name, and entered into and

held possession of the land for the time limited, it was held that the trustee and the cestui que trust were both barred by the statute. Blake v. Allman (1860) 58 N. C. (5 Jones, Eq.) 407.

In Maddox v. Allen (1858) 1 Met. (Ky.) 495, it appeared that a testator by his will directed that all his slaves under a certain age should be hired out by his executor, and their hire applied to the support of the old and infirm slaves. In pursuance of this direction a contract was made with the claimants for their hire, but possession of the slaves was retained by the widow and her devisees. The court held that such possession was adverse, and the administrator, who was in this case also a trustee, having failed to bring an action for the recovery of the slaves within the time limited, was barred, and by his neglect he had rendered himself liable to the old and infirm slaves.

Where a trustee allowed slaves, a part of the trust estate, to remain in the possession of the husband of the cestui que trust, who disposed of them by will, and they were afterward sold by his executor, it was held that the purchaser holding the slaves adversely for the period limited acquired a good title as against both the trustee and the cestui que trust. Bryan v. Weems (1856) 29 Ala. 423, 65 Am. Dec. 407.

Where a husband, on the death of his wife, took possession of property held in trust for her and her children, and held it as his own openly and adversely, it has been held that he acquired a good title against both the trustee and the cestuis que trust. Walton v. Ketchum (1898) 147 Mo. 209, 48 S. W. 924.

In Atty.-Gen. v. Federal Street Meeting-House (1854) 3 Gray (Mass.) 1, wherein it appeared that property was conveyed in trust for a religious association worshiping under the doctrines of the Presbyterian faith, and that the congregation later adopted the doctrines of another religious denomination, it was held that long adverse possession of the property after the change in faith gave the pos

sessors a perfect title as against the trustees and any members of the congregation, adhering to the Presbyterian faith, and claiming as cestuis que trust.

In Appel v. Childress (1909) 53 Tex. Civ. App. 607, 116 S. W. 129, wherein it appeared that the land in dispute was included in a tract fenced off for grazing purposes, and was later sold by the person so using it, and the purchasers built on it and occupied it as a home for a sufficient length of time to acquire title by adverse possession, it was held that a person claiming title to the land through an executor who held the legal title to the land as executor and trustee, but who had failed to take any action to protect his interest in the land, was barred by the adverse possession.

II. Death of or failure to appoint trustee. Once the Statute of Limitations begins to run in favor of an adverse holder of trust property, the death of the trustee will not suspend its operation so as to relieve the cestui que trust of the bar. Molton v. Henderson (1878) 62 Ala. 426; McLeran v. Benton (1887) 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879; Cushman v. Coleman (1893) 92 Ga. 772, 19 S. E. 46; Ewing v. Shannahan (1892) 113 Mo. 188, 20 S. W. 1065; Woolridge v. Planters' Bank (1853) 1 Sneed (Tenn.) 297; Watkins v. Specht (1870) 7 Coldw. (Tenn.) 585.

In Wooldridge v. Planters' Bank (1853) 1 Sneed (Tenn.) 297, supra, the court, holding that the failure to appoint a successor of a deceased trustee did not stop the running of the statute after it had commenced, said: "The statute having commenced running, its operation could not be arrested or suspended otherwise than by a suit in law or equity effectually prosecuted. . . . The death of White in 1844, and the neglect to appoint another trustee in his place, can therefore have no effect in preventing the bar of the statute in the present case, and it is well settled that if a trustee, having the legal title, is barred by operation of the Statute of Limitations, the cestui 2 A.L.R.-4.

que trust is also barred though an infant."

However, it has been held that if on the death of the trustee his heirs, who acquire his rights as trustee, are laboring under the disability of infancy, the statute ceases to run until they, or rather any one of them, reaches the age of majority. Clayton v. Rose (1882) 87 N. C. 106; Cameron v. Hicks (1906) 141 N. C. 21, 7 L.R.A. (N.S.) 407, 53 S. E. 728. Thus, in the case first cited, wherein it appeared that after the death of the original trustee, leaving only minor heirs, the life tenant, who was also one of the cestuis que trust, attempted to convey the trust estate, and the purchaser entered into possession. In answer to the contention that he had held the land adversely for a sufficient period of time to acquire a perfect title, the court said: "It is conceded that, where the right of entry is barred and the right of action lost by the trustee or person holding the legal estate through an adverse occupation, the cestui que trust is also concluded from asserting a claim to the land.

. . And the correlative must be accepted that when the trustee is not barred, neither can the cestui que trust be, since as against strangers they are identified in interest. The alleged hostile possession by the defendant began after the death of the original trustee, and when the legal estate had descended, clothed with the trust, to his infant children; and this disability prevents the statute from starting to run to their prejudice."

But, if any one of several cotrustees is free from disability, the disability of the others will not stop the running of the statute. Thus, in Cameron v. Hicks (N. C.) supra, wherein it appeared that one of the infant heirs of the original trustee reached her majority at a period of more than twenty-one years before the beginning of the action, and one month and eleven days thereafter married, it was held that during this period, she being under no disability, the statute began to run, even though there were other trustees who were still infants; nor did the fact that she acquired a subse

quent disability by her marriage stop the statute.

It has been held that where the adverse possession commenced after the death of the trustee, there being no other person with title against which limitations could run, the adverse possession for the statutory period could not ripen into title. Jones v. Rountree (1912) 138 Ga. 757, 76 S. E. 55, wherein it was said: "If it began to ripen in his lifetime, under the. ruling in Cushman v. Coleman (1893) 92 Ga. 772, 19 S. E. 46, his death alone would not suspend its operation, unless for some reason expressly declared, by law. But that decision did not change the general rule that, if there is no person in life against whom prescription can commence to run, it cannot be begun and ripened against a dead trustee, so as to affect a beneficiary in contingent remainder, with no right of entry, possession, or recovery of possession during the continuance of the life estate."

However, it has been held that even though no trustee was named in a will creating a trust estate, nor anyone appointed by order of court, title by adverse possession could be acquired as against the cestui que trust. Maus v. Maus (1876) 80 Pa. 194, wherein it appeared that a purchaser of trust property at a void sheriff's sale took possession, and held it adversely for the required period of time. The court, holding that as the cestuis que trust could have had a trustee appointed, and then compelled him to take the necessary steps to protect their interest, their failure to do so barred them, said: "As the testator named no trustee of this trust, it was one to be filled by the proper court, on application of any of the parties in interest. By the terms of the will, the trustee (on his appointment) would have a power to enter on the land and take the rents, issues, and profits, in order to create the trust fund contemplated for the brothers in necessitous circumstances. This being so, it was in the power of anyone having an interest in the estate to procure the appointment of a trustee, and then compel him to enter,

a

if an entry be necessary to bar the Statute of Limitations, against stranger who had entered into possession. Smilie v. Biffle (1845) 2 Pa. St. 52, 44 Am. Dec. 156. Had there been an existing trustee at the death of Elizabeth Maus, that case is a direct authority that not only the legal estate, but the trust itself, would be barred by the statute, unless entry be made in time to bar the statute. But the fact that there was no existing trustee could make no difference in the case, for the power to fill the trust by appointment being plenary, and at the will of the persons in interest, they stood in a position to be visited by their own laches, as much as if there was a trustee. Not only the surviving brothers, after the death of Elizabeth, whose interest was most immediate, but any of the testator's lawful heirs, whose interest was direct, though more distant in the time of enjoyment, would have the power to procure the appointment of a trustee, and to compel him to enter into possession, to save the estate from the bar of the statute."

III. Disability of cestui que trust.

The rule that, where a trustee holding the legal title is barred by adverse possession from asserting his rights in the trust estate, the cestui que trust is also barred, is equally applicable whether the cestui que trust is sui juris, or is laboring under a disability such as coverture, infancy, insanity, etc. Thus, in Wingfield v. Virgin (1874) 51 Ga. 139, wherein it appeared that certain property conveyed by a husband in trust for his wife and her children was afterwards conveyed by a void deed given by the husband, as trustee for the wife, to a third party, who held it for the requisite period to acquire title by adverse possession, it was held that, as the actual trustee had stood by and allowed the trust property to be entered and possessed. adversely, he was barred from bringing an action to recover it, and so likewise were the infant cestuis que trust. In this case the court said: "When the legal title to the property is vested in a trustee who can sue for it, and

fails to do so within the time prescribed by law, and his right of action is barred, the infant cestuis que trust, who have only an equitable interest in the property, will be also barred; but when the legal title to the property is vested in the infants, or cast upon them by operation of law, then the statute does not run against them during their infancy. In the

case before us, the legal title to the property in controversy never was in complainants, and could not be until the death of Weems, their father; and therefore Wylie's title by prescription was good as against Wingfield, the trustee, who had the legal title to the property, and, he being barred from recovering the possession of it, the complainants, his infant cestuis que trust, are also barred."

The reason of the rule is that, as the trust exists only as between the trustee and the cestui que trust, public policy forbids that the exceptions contained in the Statute of Limitations should be ingrafted on it. Molton v. Henderson (1878) 62 Ala. 426; Wych v. East India Co. (1734) 3 P. Wms. 309, 24 Eng. Reprint, 1078. In the case last cited it was said: "The administrator during the infancy of the plaintiff had a right to sue; and though the cestui que trust was an infant, yet he must be bound by the trustee's not suing in time; for I cannot take away the benefit of the Statute of Limitations from the company, who are in no default, and are entitled to take advantage thereof as well as private persons, since their witnesses may die, or their vouchers be lost. And as to the trust, that is only between the administrator and the infant, and does not affect the company."

In Crook v. Glenn (1869) 30 Md. 55, the court, after quoting with approval the case of Wych v. East India Co (Eng.) supra, said: "The reasoning of that case applies with full force to this; and though it was a case in which the rights of an infant were concerned, still the principle of it is equally applicable to the case of a feme covert. The trustee being competent, and having the right to sue, but failed to do so, and allowed a period

of time to elapse greater than that prescribed for limiting the right of entry at law in cases of legal title, without any recognition of the rights of the cestuis que trust on the part of those holding the possession, the bar was complete at the time of the institution of this suit; and, if the right were otherwise clear, this defense of lapse of time would be fatal to the claim of the appellants."

And in McLeran v. Benton (1887) 73 Cal. 329, 2 Am. St. Rep. 814, 14 Pac. 879, wherein it appeared that the executor was deprived of the possession of the property by order of court, it was held that the adverse possession of the defendants barred not only the executor, but also the infant heirs. On this point the court said: "The executors took possession of the property, and retained the same until put out by the sheriff, under order of the court, made in the action for divorce and division of the property. If the entry of the defendants was wrongful, the devisees of Harmon could not maintain an action, for that right existed exclusively in the executors, who in all suits for the benefit of the estate, represented both the creditors and the heirs. . . . It would seem to follow, therefore, that when the executor is barred of his action the heir is barred, although the heir cr devisee be laboring under a disability. . The general rule is that, when a trustee is barred by the Statute of Limitations, the cestui que trust is likewise barred, even though an infant. and that the heir or devisee is dependent upon the diligence of the executor for the maintenance of his rights with respect to the real property; but is not without a remedy by an action for damages against his executor and his sureties, or by a proper proceeding to compel him to bring suit."

And in Thompson v. Carmichael (1888) 122 Pa. 478, 15 Atl. 867, the court, holding that as the cestui que trust, though laboring under the technical disability of coverture, was really under no disability in so far as the enforcement of her rights in that case was concerned, the trustee