of law is necessary for the quieting of titles. If such presumptions could not be made, some titles would remain for ever imperfect. There might be an outstanding legal estate, which would at any time defeat the tenant, if there could not be a presumption of a conveyance or surrender by the trustee to the cestui que trust. This presumption is somewhat different from that prescription by which one tenant by an open, peaceable, and adverse occupation, under a claim of right, obtains the legal title as against another person. In such case, after a definite period of time, a grant or conveyance is presumed in favor of the tenant in occupation, though it may be well enough understood that no such grant or conveyance was ever made. So there may be a presumption that a trustee has conveyed to the cestui que trust, though such presumption may not always be founded on a belief that such conveyance was actually made.1 There is another difficulty between trustees and cestuis que trust which does not exist between adverse claimants of the same legal title. The titles of the trustee and cestui que trust are not adverse to each other, and generally the possession of the cestui que trust is the possession of the trustee; at any rate it is generally consistent with the legal title of the trustee. Therefore, mere length of time as between trustee and cestui que trust will afford no ground for a presumption of a conveyance or surrender from the trustee to the cestui que trust,2 as cestuis que trust may occupy the estate indefinitely under a merely equitable title. Noel v. Bewley, 3 Sim. 103; Cooke v. Salton, 2 S. & S. 154; Hillary v. Waller, 12 Ves. 239; Lade v. Holford, Bull. N. P. 110; Doe v. Hilder, 2 B. & A. 782; Emery v. Grocock, 6 Madd. 54; Townshend v. Champernown, 1 Y. & J. 583; Goodtitle v. Jones, 7 T. R. 47; Doe v. Sybourn, ib. 2; Moore v. Jackson, 4 Wend. 59; Dutch Church v. Mott, 7 Paige, 77; Jackson v. Moore, 13 Johns. 513; 1Green. Cruise, Dig. 412; Matthews v. Ward, 10 Gill & J. 443; Jackson v. Pierce, 2 Johns. 226; Sinclair v. Jackson, 8 Cow. 543. 1 Hillary v. Waller, 12 Ves. 252. 2 Keene v. Deardon, 8 East, 263; Goodson v. Ellison, 3 Russ. 588; § 350. This presumption has been discussed at length in several cases, and some difference of opinion has been expressed; but it seems now to be well settled that three circumstances must concur in order to raise the presumption of a conveyance or surrender by the trustee to the cestui que trust: (1.) It must have been the duty of the trustee to make the conveyance; (2.) There must be some sufficient reason to support the presumption; (3.) The presumption must be in support of a just title, and not to defeat it. § 351. Thus where the cestui que trust becomes absolutely entitled to the whole beneficial interest in the trust estate, and the active duties of the trustee have ceased, the statute of uses generally executes the legal title of the trustee to the cestui que trust, and he obtains the legal as well as the beneficial estate. But there are cases where the active duties of the trustee having ceased, the legal title does not pass without a conveyance. In such cases it is clearly the duty of the trustee to convey the legal title to the cestui que trust, or to such person as he shall appoint.2 Therefore, if the beneficial owner has been a long time in possession, dealing with the estate in every respect as his own, it will be presumed that the trustee performed his duty and conveyed the legal estate to the proper person. As where a mortgage in fee was made to a trustee for the real mortgagee, and the cestui que trust or real mortgagee took a conveyance of the equity of redemption, and ever after dealt with the estate as if the legal fee was in him, a conveyance of the mortgage Hillary v. Waller, 12 Ves. 251; 1 Sugd. V. & P. 350, 470; Flournoy v. Johnson, 7 B. Mon. 694; Doe v. Langdon, 12 Q. B. 719. 1 Lade v. Holford, Bull. N. P. 110; Doe v. Sybourn, 7 T. R. 2; Goodtitle v. Jones, ib. 49; Doe v. Read, 8 T. R. 118; see note, 1 Green. Cruise, 410; 2 Pow. on Mort. 491. 2 Langley v. Sneyd, 1 S. & S. 45; Carteret v. Carteret, 2 P. Wms. 134; Angier v. Stannard, 3 Myl. & K. 571; England v. Slade, 4 T. R. 682; Goodson v. Ellison, 3 Russ. 583. was presumed to have been made to him by the trustee.1 There was a use of the estate in this case for one hundred years. Where lands were conveyed to trustees for a religious society, which was afterwards incorporated, it was held, after the use of the land for one hundred and forty years by the incorporated society, that a conveyance by the trustees might be presumed. So where several persons conveyed to a trustee a tract of land for the purposes of a partition by the trustee conveying back to each person his share in severalty, as set forth in the deed, it was held, after an occupation of many years by each person in severalty according to the intended partition, that the trustee might be presumed to have conveyed. Where the trustees are to convey upon a certain event, or at a certain time, as when a minor becomes twentyone, the presumption will arise after a much shorter lapse of time. Thus, where trustees were to convey to the testator's son immediately on his coming of age, the son became of age in 1788, and granted a long lease in 1789, the court presumed a conveyance in 1792, or only four years after the event, there being no proof of an actual conveyance. Lord Kenyon said "there was no reason why the jury should not presume a conveyance from the trustees. They were bound to make one, and a court would have compelled them to have done it if they had refused. It is rather to be presumed that they did their duty. And as to time, the jury may be directed to presume a conveyance and surrender in much less time than twenty years."5 So where the direction to the trustee to convey applies to only a part of the estate, the court may presume a conveyance of the whole, if the circumstances require or warrant such presumption. 1 Noel v. Bewley, 3 Sim. 103. 2 Dutch Church v. Mott, 7 Paige, 77. 8 Jackson v. Moore, 13 Johns. 513. 4 Wilson v. Allen, 1 J. & W. 611; Hillary v. Waller, 12 Ves. 239; Doe v. Sybourn, 7 T. R. 2. England v. Slade, 4 T. R. 682; Marr v. Gilman, 1 Cold. 488. § 352. If the estate was originally conveyed to trustees for some particular purpose, as by way of security or indemnity, or to raise an annuity or portion, or for any other purpose, as soon as the purpose is accomplished, the trustees become mere dry trustees, and it is their duty to convey the estate to the beneficial owner. Where, from lapse of time joined with other circumstances, there is a moral certainty that the purposes of the trust have all been accomplished, the court will act upon the certainty, and presume a reconveyance, although there is no direct proof of the fact.2 § 353. Where an estate is vested in trustees upon an express trust, they must retain the legal title until the trusts are fully executed. Therefore, no conveyance will be presumed, so long as the trustees have any duties to perform; for that would be to presume a breach of trust, which will never be presumed: the fact must be proved by competent evidence. In Aiken v. Smith, the court presumed that the conveyance was made at the death of the tenant for life, that being the time fixed for the conveyance, and the time when the active duties of the trustees ceased.* § 354. But there must always be sufficient reason for presuming a reconveyance or surrender by the trustee; that is, there must be some evidence of such a conveyance, or some evidence upon which the presumption of the conveyance may be founded. The mere fact that the trustee was to convey 1 Hillary v. Waller, 12 Ves. 239; Doe v. Sybourn, 7 T. R. 2; Cooke v. Soltau, 2 S. & S. 154; Ex parte Holman, 1 Sugd. V. & P. 509; Emery v. Grocock, 6 Madd. 54; Doe v. Wright, 2 B. & A. 710; Bartlett v. Downes, 3 B. & Cr. 616. 2 Emery v. Grocock, 6 Madd. 54; Hillary v. Waller, 12 Ves. 252. * Beach v. Beach, 14 Vt. 28; Doe v. Steaple, 2 T. R. 684; Keene v. Deardon, 8 East, 248; Flournoy v. Johnson, 7 B. Mon. 694. Aiken v. Smith, 1 Sneed, 304. This case is opposed to Rees v. Williams, 2 M. & W. 749. upon the execution of the trust, or upon the happening of a certain event, is not enough. There must be some circumstance from which it may be reasonably concluded that he did in fact convey. Mere length of time is not enough. Courts have refused after the lapse of one hundred and twenty years to presume a reconveyance, when there were no intermediate transactions to give force to the length of time;1 for the possession during all that time may not be inconsistent with the trustee's title. However, great lapse of time is an important circumstance; and the fact that it was the duty of the trustees to convey is another important circumstance. slight circumstances added to these will be sufficient to justify a court or jury in presuming a conveyance; and a conveyance may be presumed where the estate has been dealt with by the beneficial owner in a manner in which reasonable men do not deal with their estates, unless they are the legal as well as beneficial owners.3 Very § 355. It is further said that the purpose of the presumption must be to prevent a just title from being defeated by mere matter of form. The presumption is a shield for defence and not a sword for attack, as was said of another principle of law. As the presumption was introduced for the security of estates and the protection of innocent purchasers, it cannot be set up to eject them from their estates; and therefore the presumption will be made only in favor of the person in whom the beneficial title is clearly vested for 1 Goodright v. Swymmer, 1 Kenyon, 385; Goodson v. Ellison, 3 Russ. 583; Langley v. Sneyd, 1 S. & S. 45; Doe v. Lloyd, Mathews on Presumptions, 215. 250. 2 Ibid. Keene v. Deardon, 8 East, 363; Hillary v. Waller, 12 Ves. 8 Garrard v. Tuck, 8 C. B. 248; Cottrell v. Hughes, 15 C. B. 532; Hillary v. Waller, 12 Ves. 239; Wilson v. Allen, 1 J. & W. 611. ♦ Lade v. Holford, Bull. N. P. 110; Doe v. Sybourn, 7 T. R. 2; Goodtitle v. Jones, 7 T. R. 47. |