years to secure loans. By deed dated 11th of February, 1829, in consideration of a sum of 5601. then advanced by B., and the other moneys owing on the previous mortgages, A., at the request of B., conveyed the estates comprised in the previous mortgages and other estates to C. in fee upon trust, in case of repayment of the 5601. on the 11th of August then next, and of the other moneys then charged on the property, to reconvey the same to A., his heirs or assigns. But in default of payment upon trust, that C. should enter into possession of the property, and at his sole authority sell the same, and hold the sale moneys, upon trust, after paying off the sums owing to B., and a sum of 1801. to another incumbrancer, to pay the surplus unto A., his executors, administrators or assigns. That deed did not assign the terms. B. entered into possession in 1832, and continued in possession till his death in 1860. He devised the property to the defendants in trust for sale, and they had remained in possession ever since. C. accepted and acted in the trusts: - Held, on bill filed by the heir-at-law of A. against the devisee of B. that the deed of 1829 vested the property in C. upon an express trust within section 25 of the Statute of Limitations, that B. could not set up the terms, and that the possession of B. was the possession of C., his trustee, and that consequently the right of the heir-atlaw of A. was not barred by section 28 of the statute. The facts of the case and the effect of the deeds will appear from the judgment of the Master of the Rolls (which was in writing). They were shortly as follows Between the years 1822 and 1828 William Locking executed several deeds of mortgage, and further charge to Lysimachus Parker by demise of certain lands for a term of 1,000 years, and of certain other lands for a term of 2,000 years, for securing in the whole the sum of 1,2001. By an indenture of the 11th of February, 1829, made between the said William Locking of the first part, the said Lysimachus Parker of the second part, and the defendant, Cornelius Parker, the whole of the lands comprised in the prior deeds of mortgage and further charge, were in consideration of 56017. then lent to William Locking by Lysimachus Parker conveyed to the defendant, Cornelius Parker, his heirs and assigns, upon trust in case of repayment of the 5607. on the 11th of August then next, and of the other moneys then charged on the property, to reconvey the same to William Locking, his heirs or assigns. But in default of payment upon trust, that Cornelius Parker should enter into possession of the property, and at his sole authority sell the same, and out of the sale moneys, after paying off the two sums of 5601. and 1,2001. to Lysimachus Parker, and a sum of 180l. to Robert Epworth, another incumbrancer on the property, pay the surplus unto William Locking, his executors, administrators or assigns. The terms were not assigned or surrendered by that deed. On the same day William Locking executed an attornment to Lysimachus Parker of the premises in mortgage to Lysimachus Parker. The attornment was as follows-"I, the undersigned, William Locking, do hereby attorn and become tenant to Lysimachus Parker of ... the hereditaments and premises now in mortgage to the said Lysimachus Parker for securing the payment of the sum of 1,7601. and interest from me to the said Lysimachus Parker from the 11th day of February instant, at the clear rent or sum of 881., payable half-yearly. But nevertheless subject and without prejudice to the rights and remedies given by me to the said Lysimachus Parker, his executors, administrators, or assigns, or for his and their benefit in, over, and upon the said hereditaments and premises in and by the several indentures of mort gage for securing the said sum of 1,7601. and interest." Cornelius Parker, the trustee, did not sign or become a party to this attornment. On the 20th of April, 1831, William Locking executed another attornment. Lysimachus Parker entered into possession in 1832, and continued in possession till his death in 1860. In the years 1832, 1839, 1840, and 1848 various portions of the property were sold, and the conveyances to the purchasers were executed by Cornelius Parker as trustee of the deed of 1829. Lysimachus Parker died in 1860, having by his will in terms devised the property comprised in the deed of 1829 Cornelius Parker and John J. Parkinson upon trust for sale. to William Locking died in 1870, and the present bill was filed in May, 1871, by his heir-at-law and administrator against Cornelius Parker and John J. Parkinson for an account and execution of the trusts of the deed of the 11th February, 1829. Mr. Fry, Mr. Hall and Mr. Marcy, for the plaintiff. The plaintiff is a cestui que trust or the representative of a cestui que trust, entitled to the property under the deed of 11th February, 1829. The defendant Cornelius Parker is a trustee of that deed and has accepted and acted in the trusts of it. And therefore the plaintiff is entitled to the relief he asks for, viz., performance of the trusts of that deed. Defendants will perhaps contend that the form of the deed does not alter the fact that the relationship of mortgagor and mortgagee exists between the parties and therefore that section 28 of Statute of Limitations is a bar. There are many cases in which it has been laid down that these deeds upon trust for sale are totally different from ordinary mortgage deeds Sampson v. Pattison, 1 Hare 533; Re Underwood, 3 Kay & J. 745. That such deed in form created an express trust is incontestable; and you must look at the form of the deed to ascertain NEW SERIES, 41.-CHANC. its purport, but in this case the trust is not a mere matter of form. Cornelius Parker was constituted trustee for three distinct persons 1. For his brother Lysimachus Parker. 2. For Robert Epworth, another incumbrancer. 3. For William Locking, his executors, administrators or assigns. The deed, therefore, vests the property in him upon an express trust, and the case is governed by section 25 of 3 & 4 Will. 4. c. 27, and time does not begin to run against the plaintiff as a cestui que trust, until the land has been conveyed to a purchaser for value Lewis v. Duncombe, 29 Beav. 175; s. c. 30 Law J. Rep. (N.S.) Chanc. 732, is conclusive in our favour. It is true that it is a case on section 42, but that section is as imperative in its terms as section 28 Young v. Lord Waterpark, 13 Sim. 204; s. c. 15 Law J. Rep. (N.S.) Chanc. 63; a case on section 40; and Cox v. Dolman, 2 De Gex, M. & G. 592; s. c. 22 Law J. Rep. (N.S.) Chanc. 427; a case on section 42, are to the same effect, and they are followed and confirmed inSnow v. Booth, 2 Kay & J. 132; s. c. 8 De Gex, M. & G. 69; 25 Law J. Rep. (N.S.) Chanc. 417. In Shaw v. Johnson, 1 Dr. & S. 412; s. c. 30 Law J. Rep. (N.S.) Chanc. 646, Vice-Chancellor Kindersley says, that where a term is created for the purpose of securing the mortgage money and interest the time does not run, because there is an express trust within section 25. But supposing there were no enactment to the effect of section 25, even then the plaintiff's claim would not be barred by adverse possession. Lysimachus Parker was a cestui que trust; the possession of the cestui que trust is the possession of the trusteeLewin on Trusts, p. 637; Garrard v. Tuck, 8 Com. B. Rep. 231; 4 A 421; s. c. 27 Law J. Rep. (N.S.) Chanc. 520; Melling v. Leak, 16 Com. B. Rep. 652, 669; s. c. 24 Law J. Rep. (N.S.) C.P. 187; They also cited Thomas v. Cook, 2 B. & Ald. 119; Davison v. Gent, 1 Hurl. & N. 744; s. c. 26 Law J. Rep. (N.S.) Exch. Hovendon v. Lord Annesley, 2 Sch. & Marquis of Clanricarde v. Henning, 30 Beav. 175; s. c. 30 Law J. Rep. (N.S.) Chanc. 865. The question simply is one of law, is the trust of the deed of 1829 an express trust within section 25 of 3 & 4 Will. 4. c. 27 or not? The defendants pretend that Lysimachus Parker could set up the terms involved by the four mortgage deeds. But their subsistence was absolutely inconsistent with the trust for sale in the deed of 1829, which clearly contemplated a sale of the fee in possession. A sale of a reversion expectant upon a term of 1,000 years would be absurd. In fact, these terms are gone by operation of law as shown by the cases collected in Woodfall on Landlord and Tenant, 10 Ed. p. 272. Mr. Southgate and Mr. Nalder, for the defendant. The attornment of February 11th, 1829, to Lysimachus Parker, expressly states that it is without prejudice to his prior securities. There has been no surrender or merger of these terms M'Donnell v. Pope, 9 Hare 705. It is quite clear, therefore, that those terms are subsisting, and it was under those that he was entitled to possession. As a mortgagee of those terms he has held the property for more than twenty years, and therefore, to them at least and the land comprised in them, he is absolutely entitled under section 28 of the statute. But he was also a mortgagee under the deed of 1829. The first trust of that deed is for him absolutely, then follows an express proviso for redemption. The trust is in case of repayment of the sums charged upon the property on the 11th of August then next, to reconvey the premises to the mortgagor, his heirs, and assigns. This makes it in form and effect a mortgage in fee to Lysimachus Parker, coupled with a trust for sale. There being a trust for sale does not make it less a mortgage. Lysimachus Parker and his representatives have, therefore, obtained an absolute title by possession under section 28 of the statute. The plaintiff's case is that the possession of Lysimachus Parker was the possession of Cornelius Parker, the trustee. But if there was any trust, it was a trust merely for Lysimachus Parker, and not for the mortgagor; and if any trust for the mortgagor, the possession of Lysimachus Parker and his devisees was adverse to every other person beneficially entitled under the trust Burrows v. M'Creight (ubi supra). is in our favour, so also is Doe v. Phillips, 10 Q.B. Rep. 130. The cases cited for the plaintiff are all cases of trusts, and do not apply here to the case of a mortgage. Mr. Fry in reply.-It is said that section 25 does not apply to mortgages, but the cases prove that a mortgagee has the benefit of section 25 in getting interest. Section 28 does not appear to apply to anything but redemption suits. This is not a redemption suit, but a suit to execute the trusts of a trust deed. There is a trust for sale. There is no power to redeem. The surplus is limited to the mortgagor, his executors, administrators and assigns. If the heir of the mortgagor had tried to redeem, the answer would have been, "Your ancestor has conveyed the property to a trustee in trust to sell and pay the surplus of the sale moneys to his executors." All the heir could do would be to pay off the debt, and thus elect to take the property in its unconverted state. Suppose Epworth had filed a bill, he could have insisted on having the trust performed. Not being a redemption suit, but a suit for execution of the trust, it is not within section 28. The case of Burrows v. M'Creight (ubi supra), cited for the defendants, was a case depending on section 12 of 3 & 4 Will. 4. c. 27, which says that the possession of one coparcener shall not be considered the possession of another. Besides, the ground of that decision was that the trustee never acted, and that the defendants had received the rents in opposition to the trustee. Doe d. Jacobs v. Phillips (ubi supra) was also a case of coparceners, and is treated as not binding in Garrard v. Tuck (ubi supra). As to the attornment, it was contemporaneous with the deed of 1829, and was executed to enable Lysimachus Parker to obtain interest in form of rent, and its effect was to make Lysimachus Parker receiver or bailiff of Cornelius Parker as to the rents; see Melling v. Leak (ubi supra). THE MASTER OF THE ROLLS (on 27th of May, 1872).-The point to be determined in this case relates to the proper construction to be put on the Statute of Limitations of 3 & 4 Will. 4. c. 27 Whether the 28th section of the statute bars the right of the plaintiff, or whether under the 25th section Lysimachus Parker was at his decease a trustee for the plaintiff. The facts are these-William Locking, who was entitled in fee simple to certain hereditaments in Marsh Chapel, by indenture of the 10th of May, 1822, demised them to Lysimachus Parker for a term of 1,000 years to secure a sum of 8001. and interest. In 1824 he charged the said hereditaments with a further sum of 1007., and in 1826 with another charge of 100l., making in the whole 1,000. By another indenture bearing date the 25th of April, 1828, William Locking demised the above-mentioned premises, together with certain other hereditaments situate in Marsh Chapel aforesaid, of which he was seised in fee for a term of 2,000 years, to secure a sum of 1007., and by another indenture bearing date the 10th of December, 1828, he charged both these sets of hereditaments with a further sum of 1001. Afterwards, certain indentures of lease and release, bearing date the 10th and 11th of February, 1829, were executed, on which the question to be determined principally arises. The release was expressed to be executed by William Locking, of the first part, Lysimachus Parker, of the second part, and the defendant, Cornelius Parker, of the third part. By it, in consideration of 5601. advanced by Lysimachus Parker to William Locking, William Locking granted, bargained, sold and released to Cornelius Parker, the defendant, the property and hereditaments comprised in the indentures before mentioned of 1824 and 1826, and also the further hereditaments comprised in the indenture of the 10th of December, 1828, and also certain other hereditaments not comprised in the before mentioned indentures. It goes on in these words-" And also all other the lands, tenements and hereditaments whatsoever of him, William Locking, situate -in the places he mentions-" to hold the same to the proper use and behoof of Cornelius Parker, his heirs and assigns, in trust, for the said Lysimachus Parker, his heirs, executors, administrators and assigns, but nevertheless upon the further trusts and for the ends, intents and purposes hereinafter expressed of and concerning the same." cerning the same." And Cornelius Parker and his heirs were to stand possessed of the same hereditaments in trust to permit William Locking to take the rents until the 11th of August then next ensuing, "being the day and time agreed upon for payment of the said sum of 5601. and interest," and in case William Locking should then repay the 560l. and interest, and also the other sums already charged upon the said hereditaments, or on some part thereof, to reconvey the said hereditaments to William Locking at his costs, but in default, then that Cornelius Parker should immediately thereupon or at any time thereafter, at his or their discretion, enter into possession of the hereditaments, receive the rents, and at his or their sole and absolute authority sell and dispose of the same hereditaments, and stand possessed of the moneys to arise by the sale of all or any part of the said hereditaments and of the rents of the unsold portion until the whole were sold upon the trusts following, "that is to say, in trust in the first place to pay or retain to and reimburse himself and themselves, all costs, charges, damages and expenses attending such sale or sales, in making out and investigating the title to the said hereditaments and premises, and in enforcing any contract for the purchase thereof, or otherwise to be incurred in the execution of the trusts hereby declared, or in anywise relating thereto. And in the next place to deduct and pay unto the said Lysimachus Parker, his executors, administrators and assigns, as well the said sum of 5601. now lent and advanced, and all arrears of interest which may be then due for the same, as also the further sum of 1,2007. secured by the said William Locking to the said Lysimachus Parker upon part of the said hereditaments and premises, under or by virtue of five several indentures of mortgage, and further charge bearing date respectively, the 10th day of May, 1822, the 10th day of November, 1824, the 25th day of October, 1826, the 25th day of April, 1828, and the 10th day of December, 1828, and respectively made between the said William Locking of the one part, and the said Lysimachus Parker of the other part, with the interest now or hereafter to grow due for the same. And that he the said Cornelius Parker, his heirs, executors, administrators or assigns, shall and do also deduct and pay unto Robert Epworth of Grimblethorpe, in the said county of Lincoln, farmer, the acting executor named in the last will and testament of Eleanor Eyson, late of Louth, aforesaid, widow, deceased, his executors, administrators or assigns, the sum of 1807. and the interest now or hereafter to grow due for the same, and which same sum and interest are secured to the said Robert Epworth upon part of the said hereditaments and premises, under or by virtue of a certain indenture of mortgage bearing date the 17th day of March, 1824, and made between the said William Locking of the one part, and the said Eleanor Eyson of the other part. And also a certain other indenture of mortgage or further charge, bearing date the 27th day of April, 1827, and made between the said William Locking of the one part, and the said Robert Epworth, as herein before described, of the other part. And after full payment and satisfaction of all and every, the aforesaid principal and in terest, moneys, costs, charges, damages and expenses in trust to pay over the residue or surplus of the moneys to arise by the means aforesaid, unto the said William Locking, his executors, administrators or assigns, for his and their own use and benefit, or to whom he or they in writing shall direct." There was also a covenant for payment of the money. On the same day, notwithstanding the six months given to redeem by the deed itself, William Locking executed a declaration of attornment to Lysimachus Parker, and put him in possession of the property, and the receipt of the rents. Cornelius Parker did not execute the deed in question, which was duly executed by William Locking and Lysimachus Parker alone. But Cornelius Parker accepted the trusts, and acted in the discharge of them. The fact is estab lished by abundant testimony. Accordingly on the 6th of April, 1832, an indenture was duly made and executed by and between Cornelius Parker of the first part, Lysimachus Parker of the second part, William Bassett of the third part, and Samuel Frought of the fourth part, by which a portion of the said hereditaments were sold and conveyed to William Bassett in fee simple for the sum of 1457. This indenture recites as follows, "And whereas Cornelius Parker, as trustee for the sale of the said hereditaments hereinafter mentioned, conveyed, granted and released by a certain indenture of lease and release of the 10th and 11th of February, 1829." Then it recites the whole release, and then he agrees to sell this property. Then it contains a covenant for the surrender of the term of each at the end of the indenture. On the sale of this property by auction in February, 1832, Cornelius Parker signed the following paper, addressed to the auctioneer, "I, the undersigned, Cornelius Parker, of Louth in the county of Lincoln, gentleman, owner of the estates intended to be sold by you at Mr. Carter's Fire Beacon by public auction on the 23rd day of February instant, do hereby give you notice that I have appointed the undersigned Lysimachus Parker, of the same place, to bid on my behalf or for my use, and at the same sale. And I, the above named Lysimachus |