
    Thomas J. Watkins et al. vs. Joseph Specht et al.
      
    
    
      1. Construction on Writings. Trustee’s estate vested in fee in him. A deed executed in 1843, to W. L. Johnson and his heirs and assigns, to his and their only proper use, benefit and behoof, for ever, in trust, etc., reciting that said Johnson, as trustee of a fund bequeathed to Mrs. Mildred B. Watkins, by Lucy Quarles, of Virginia, for life, and remainder in fee to the children of said Mildred B. Watkins; and also that out of that fund he had invested in said land eight hundred and eighteen dollars, in trust for the use and benefit of Mildred B. Watkins for life, and at her death to become the property in fee simple of the heirs of her body. Held, that this deed conveyed the legal estate in the land to the trustee in fee, subject to an equitable estate for life in Mrs. Watkins, and an equitable estate in remainder in her heirs.
    2. Legau Estate in Trustee. Seven years’ possession bars trustee and cestui que trust. Statute of limitations. If an estate in fee is vested in a trustee, and adverse possession is taken and held against him for more than seven years, the legal estate of the trustee would, under our own statute of limitations, be barred; and this would operate as a bar to the equitable estate of the cestui que trust.
    
    
      3. Estate in fee. Vested in trustee by deed, will not be cut down by implication. An estate in fee in real estate, conferred upon the trustee by the terms of the deed, will not be cut down by implication merely to an estate for life, upon the ground that the purposes of the trust do not require an estate in fee.
    4. Cikcuit Courts. No inherent power to appoint trustee. Circuit Courts of this State have no inherent power to appoint a successor to a former trustee, who has died or resigned his trust. Its powers, in this respect, are derived from our statutes.
    5. Same. The heirs of the trustee and the cestui que trust must be parties to a proceeding to appoint a new trustee. In a proceeding, in any of our Courts, to appoint a successor to a deceased trustee, the cestui que trusts and the heirs of the trustee, should he made parties to the suit, or the appointment of a new trustee will be invalid, and confers no estate, legal or equitable, upon him.
    6. Same. Upon the death of a trustee for real estate, the legal estate devolves on his heirs at law, with only the same rights, as their ancestor. Upon the dealh-of the trustee of real estate, the legal estate devolves upon his heirs at law; and the heir takes the same estate, and is subject to exactly the same duties and responsibilities as his ancestor.
    7. Statute of Limitations. Bars the right of possession and reemery of .the trustee, and equitable life estate and remainderman, when the legal title is in the trustee. Where the entire legal estate is vested in a trustee the legal right of possession and right of action is in the trustee, and j' not in the cestui que trust. There is no right to sue at law for the recovery of the possession, either in the tenant of the equitable life estate, or the person entitled to the equitable remainder. Both are represented by the trustee of the legal estate, and both are barred by such adverse possession as will bar the legal estate of the trustee, t
    8. Seizin. Once proved, is presumed to continue. Presumption. Facts continuous in their character. A seizin, once proved or admitted, is presumed to continue until a disseizin is proven; for the law presumes that a fact continuous in its character still continues to exist until a change be shown, so that a legal or actual possession continues; that an entry and ouster by a landlord, upon his tenants, continues until a restoration be shown.
    FROM MEMPHIS.
    This cause was heard at the - Term, 1867, when there was a decree in favor of the defendants, and an appeal by them. Chancellor William M. SMIti-i, presiding.
    Clapp, VaNCe & ANDERSON, for complainants.
    McRea & "WalkeR, Sale, Miller, Ayers and RaiNEY, for defendants.
    
      
       Decided April Term, 1809.
    
   George Andrews, J.,

delivered the opinion of the Court.

The bill in this cause, was filed by the complainants as children and heirs of Mildred B. "Watkins, deceased, some of whom are minors, for the purpose of declaring void and setting aside a deed of real estate made by Mildred B. Watkins, E. F. Watkins, her husband, and the trustee of the property, to certain real estate, in which the said children had an equitable interest; and to declare void certain proceedings had in the Circuit Court of Shelby county for the sale of said real estate. The complainants are the only surviving children and heirs of Edwin E. Watkins and Mildred B. Watkins, his wife, both of whom died before the filing of this bill. By the last will and testament of Lucy Quarles, of Virginia, a fund was bequeathed for the use of Mildred B. Watkins for her life, and at her decease to go to her children; and one William Q. Johnson was appointed by the Chancery Court. at Fredericksburg, Va., a trustee, to hold said property upon the trust. In the year 1843, the trustee, William Q. Johnson, with a portion of the trust fund, purchased from one Goodman a tract of land in the city of Memphis. The deed from Goodman conveys the premises to the said William Q. Johnson, his heirs and assigns, to his and their use, benefit and behoof. It recites the bequest made by Lucy Quarles, the appointment of Johnson as trustee, and declares that this conveyance is made in trust for the use and benefit of the said Mildred B. "Watkins for life, and at her death to become the property in fee simple of the heirs of her body.

In June, 1845, the Circuit Court of Shelby county, upon the ex parte petition of Edwin E. and Mildred B. Watkins, to Avhich no other persons were parties, showing that William Q. Johnson was deceased, made an order appointing David F. Johnson trustee of said prop-in his place.

On the 1st day of November, 1850, David F. Johnson, the trustee, together with Edwin F. Watkins and Mildred B. Watkins, by deed, for the consideration of $5,000, conveyed the premises in question to Alexander Patterson. This deed recites the trust of the former deed, the decease of William Q. Johnson, and the appointment of David F. Johnson as his successor in the trust; and contained a covenant of warranty of title on the part of the grantors.

Patterson took immediate possession under this deed, and the possession has remained in him and in his grantees from that time.

On the 25th day of September, 1852, Alexander Patterson sold the entire premises purchased by him, as above stated, to David Cockrell, who afterward conveyed a portion of the premises to the defendant, Joseph Specht, who is now in full possession, claiming title thereto in fee.

In January, 1851, upon the ex parte petition of David E. Johnson, the trustee, Edwin E. Watkins and Mildred B. Watkins, and such of their children as were then in being, the Circuit Court of Shelby county made an order, referring it to the. Clerk of that Court, to take proof and report whether it would be manifestly to the interest of Mrs. M. B. Watkins and her children, to sell said real estate, and what was its value. Upoh the coming in and confirming of the Clerk’s report to the January Term, 1852, a decree was made, that said David E. Johnson have full power and authority to sell said property for not less than $5,000; and that he invest the proceeds in slaves, upon the same trust upon which the land had been held.

David F. Johnson, trustee, reported to the May Term, 1855, of said Circuit Court, that he did, as directed in said decree, sell said lots to Alexander Patterson for the sum of $5,000, cash, and that he invested the said sum in seven slaves, subject to the same uses and trusts as the said lots; and thereupon the Circuit Court confirmed the report of sale of the lots, and the purchase of the negroes; divested all the right, title, claim and interest of Mildred B. Watkins and her children, and of David E. Johnson, trustee, in and to said lots, out of them, and vested the title in said Alexander Patterson, in fee. It was further ordered that said trustee make the necessary conveyance of the said lots to said Patterson; “or, if the conveyance has already been made by the said David E. Johnson, as trustee, to the said Alexander Patterson, that it is in all things confirmed.” • The bill in this case sets forth the above facts; charges that the proceedings in the Circuit Court for the sale of the land were fraudulent and void; and prays that the complainants be' declared to be the owners of said lots; that the deed from David F. Johnson, trustee, and E. F. and Mildred B. Watkins to Patterson, as well as the proceedings had in the Circuit Court for the sale of the premises, be declared void; for possession of the premises, tincl accounts of rents and profits.

The principal question in this ease arises upon the construction of the deed from Goodman to William Q. Johnson, as Trustee, in 1843; and the enqury is, what estate said Johnson took under the deed? That deed conveys the premises in question to said William Q. Johnson, his heirs and assigns, to his and their only proper use, benefit and behoof, forever. This conveyance is nevertheless made in trust, and for the use and purposes hereafter mentioned and declared, and none other; that is to say, Whereas, Lucy-Quarles heretofore devised in trust, for the use of Mildred B. Watkins for life, with remainder in fee to her, the said Mildred B. Watkins’ children, a certain legacy, and the Chancery Court at Fredericksburg, Spottsylvania County, Virginia, appointed at a'late Term of said Court, the said William Q. Johnson trustee of the fund thus devised; and whereas, the said William Q. Johnson, being desirous of securing said fund in a safe and useful manner for the benefit of said Mildred and her children, and believing it most to the interest to invest out of the same the said sum of eight hundred and eighteen dollars in one purchase of real estate, has purchased the aforesaid property hereby conveyed out of said fund. Now, therefore, this indenture witnesseth, That, in consideration of the premises aforesaid, this conveyance is made in trust, for the use and benefit of the said Mildred B. Watkins for life, and at her death to become the property in fee simple of the heirs of her body.” By the clause of the deed first above recited, the legal estate in fee was vested in William Q. Johnson, the trustee, unless the effect and operation of this clause is controlled and limited by the express terms of the subsequent portion of the deed; or unless the estate which the trustee would take by the force of the expressed terms of the deed being greater than is required for the administration of the trust, is to be cut down by the operation of the rules of law to such lesser estate as may be simply sufficient to enable him to administer the trust.

The deed first conveys the legal estate to the trustee and his heirs, and the estate being limited to his and their use, the uses executed by the statute of uses in the trustee, and not in cestuis que use, thereby creating an estate in fee in the trustee. The deed declares this conveyance to him in trust for the use and benefit of Mrs. Watkins for life, and at her death to • become the property in fee simple of the heirs of her body. If this last clause, be construed to vest a legal estate in remainder in the heirs of the body of Mrs. Watkins, then it contradicts the terms of the preceding unrestricted grant of the entire legal estate to the trustee. If it be held to convey an equitable estate in remainder to these heirs, then it is consistent with the preceding grant of the legal estate in fee to the trustee. Perhaps the latter clause, standing by itself, it might bear either construction; but our duty is to construe the deed so as to avoid all unnecessary contradiction in its terms, and to give effect to every part of it, if possible.

We, therefore, hold that the deed in question, by proper construction of its terms, operated to convey the legal estate in the land to the trustee in fee, subject to an equitable estate for life in Mildred B. Watkins, and an equitable estate in remainder in her heirs. And we do not think that this legal estate in the trustee will be cut down by implication to an estate for the life of Mildred B. Watkins only, so as to vest the legal estate in fee simple, or fee tail, in her heirs, at her decease. The rule of construction applied to deeds in this respect, is more strict than that applicable to wills; and we are satisfied that, upon authority, both in this State and elsewhere, the legal estate of the trustee, in this case, will not be cut down Ipelow a fee by implication: Hill on Trustees, -248.

Most of the cases in our own reports have arisen upon the construction of wills. In Smith vs. Thompson, 2 Swan, 386, Judge Totten says, “an express limitation of an estate in fee, contained in a deed, will not be cut down into a legal estate merely, because a fee in the trustee is not necessary for the purposes of the deed/’ and in that case, the Court held that the estate of tire trustee was limited to a life estate, upon the express grounds that the property conveyed, being a slave, was a chattel, and not real estate.

In Aiken vs. Smith, 1 Sneed, the property conveyed in trust, was also a chattel — a slave. McKinney, J., referring to- Smith vs. Thompson, says: “In that case, as in the one under consideration, the interest of the trustee ls expressly restricted, by the terms of the instrument, to the life of the person to whom the life interest is given.”

In Stephens vs. Bowman, 9 Hum., 546, the property conveyed also consisted of slaves, and the decision throws no light upon the present case.

In Parks vs. Cheek, 4 Cold., 20, the deed under discussion conveyed real estate to a trustee, “to hold the said lot during the natural life of Emily V., with remainder over to her children.” It does not appear, by the report of the case, whether the grant to the trustee contained words adapted to limit a fee. But the opinion of the Court states that it is a general rule of law, that the trustee in whom is vested a legal estate takes such interest therein as the purposes of the trust require; and hold that, in that case, the trustee took only an estate for the life of the wife. The distinction between the case of a deed, and that of a will, is not alluded to in the opinion. • The casé is so reported as not to afford us much aid in the present case.

In Williamson vs. Wickersham, 3 Cold., 52, the conveyance was of land, to a trustee and heirs, in trust, to sell for the payment of debts; and the Court held that, upon the decease of the trustee before the debts were paid or the land sold, the legal estate vested in the heirs of the trustee. Milligan, J., who delivered the opinion of tlie Court, states that “if the duties imposed upon the trustee, or the purposes of the trust, require only an estate per autre vie to be vested in him, his legal interest will be cut down to that extent, notwithstanding the express limitation to him in fee.” He does not allude to any distinction, in this respect, between deeds and wills, and the statement of this doctrine was clearly a dictum only in that case.

The above are all the cases reported in this State, arising, upon the construction, of trust deeds, which can be considered as bearing upon the present inquiry. There are a number of decisions arising upon the construction of wills,. but, for the reason above stated, they are not relevant to this discussion; and I am satisfied of the soundness of the position that an estate in fee in real estate, conferred upon a trustee by the terms of a deed, will not be cut down by implication merely to an estate for life, upon the ground that the purposes of the trust do not require an estate in fee.

I think the appointment by the Circuit Court of David T. Johnson, as trustee, in place of 'William Q,. Johnson, the deceased trustee, was invalid, and conferred upon the trustee so appointed, no estate, legal or equitable. The Circuit Court had no inherent jurisdiction to make such appointment. By the Act of 1835, chap. 20, sec. 1, the Chancery Court had exclusive original jurisdiction of all cases in equity, except bills or petitions for the partition or sale of real estate for dower and for divorce.

The Act of 1831, chap, 107, provided that the Circuit Court might accept the resignation of trustees, and appoint others in their stead, when cestui que trust has been notified; and might, in the same manner, appoint a new trustee, when a trustee fails or refuses to serve. Whether the Act of 1831 gives to the Circuit Court power to appoint a new trustee in the room of one deceased, and whether that Act is, as to the power of the Circuit Court, repealed by the Act of 1835, above mentioned, it is not necessary to decide.

The proceedings for the appointment of the new trustee was upon the ex parte petition of Mildred B. and E. E. Watkins. Neither the children of Mildred B. Watkins, nor the heirs of the deceased trustee, were made parties, or notified. This proceeding was a nullity, so far as the legal estate was concerned; and the legal estate, therefore, remained in the heirs of the former trustee: Franklin vs. Franklin, 2 Swan, 521; Williamson vs. Wickersham, 3 Cold., 52.

Patterson took possession of the premises under his deed from E. F. Watkins, Mildred B. Watkins, and David T. Johnson, in November, 1850. This deed conveyed to him no title as against the legal estate of the trustee, or against the equitable interest in remainder of the complainants. But it was sufficient to constitute a color of title in Patterson, and under it he and his grantees held possession, claiming title in fee simple, and adversely to the trustee, for more than seven years thereafter. The legal estate of the trustee was thereby barred, under our statute of limitations; and, under repeated decisions of this Court, this operated as a bar to the equitable estate of the cestui que trust: Woodridge vs. Planter’s Bank, 1 Sneed, 297.

The case of Porter vs. Greer, 1 Cold., 569, cited as establishing a distinction which takes the case of heirs of a trustee, upon whom the legal estate is cast, out of the operation of this principle, is not an authority for that purpose. The facts of that case bear no analogy to the present; and if such a doctrine was expressed in the opinion of the Court in that case, it was uncalled for by the case before the Court.

These considerations render it unnecessary to decide as to the validity of the proceedings held in the Circuit Court for the sale of the premises, and whether any title passed in virtue of those proceedings.

The result is, that the complainants have shown no title, either legal or equitable, as against the defendant; and the decree of the Chancellor, dismissing the bill will be affirmed.

Shackelford, J.,

dissenting, said:

I can not concur in the conclusions to which my brother Judges have arrived in this case. It appears from this record that a deed was executed in 1843, by Calvin Goodman, to William Q. Johnson, for the lots in suit, situated in the City of Memphis. It appears from the deed the lots were conveyed to William Q,. Johnson and his heirs in trust, for Mildred B. Watkins, for life, and at her death to become the property^in fee simple of the heirs of her body. It is insisted this conveyance vested the absolute legal estate in William Q,. Johnson, giving to Mrs. Watkins and her children an equitable estate; and the legal estate being in the heirs of William Q,. Johnson, the deed of conveyance' executed by David Johnson and Mrs. Watkins and "her husband in 1850, to Patterson, gave to him a color of title; and the heirs having only an equitable estate under the Act of 1819, tbey are barrel, the suit not having been brought within seven years. Looking to the concluding part of the deed above, the reasoning would be correct; but in the construction of a deed, we must look to the whole instrument.

It appears from the recitals of this deed, Lucy Quarles died in Virginia, bequeathing to Mildred B. Watkins, for life, with remainder in fee to her, the said Mildred B. Watkins’ children, a legacy. The Chancery Court at Fredericksburg, Virginia, appointed William Q. Johnson trustee of this fund; and the said William Q. Johnson being desirous of securing said fund in a safe and useful manner, for the benefit of said Mildred and her children, the sum of $818 was invested in the lots in suit, the deed reciting for the benefit of said Mildred for life, and at her death to become the property in fee simple of the heirs of her body. Mrs. Watkins died in 1865, and this suit was brought by the children after her death, to recover the possession of the property thus conveyed. This deed was upon record, and the purchasers had notice of the trust. The estate of Johnson in the lots, though purporting to be an estate in fee, was only for the life of Mrs. Watkins. The fund was created by will, and he was appointed by the Court in Virginia, trustee, to both the fund for Mrs. Watkins and her children. The deed of Goodman recites the trust, and it is manifest, from the recitals of the deed, that Wm. Johnson took only an estate for the life of Mrs. Watkins, and at her death the remainder in fee vested absolutely in her children, the complainants; and they having no right to sue until the termination of the life estate of Mrs. Watkins, the statute of limitations could not run.

I admit the principle to be correct, where the legal estate is vested in the trustee, and the beneficiaries having only an equity, if the trustee is barred, the equitable estate is barred also. The estate, in this case, was derived from the bequest of Mrs. Quarles; the recitals of the deed are evidences of the fact. Johnson was only possessed of such estate as was necessary to support the life estate, and upon the death of Mrs. Watkins his estate terminated.

By the express terms of the deed, the bequest was to Mrs. Watkins only for her life, with remainder in fee to her children. What is the legal effect of this deed? It did not change the character of the fund, so as to defeat the interest of the children of Mrs. Watkins. The trustee will not be permitted, in equity, to take a greater estate than is necessary to support the life estate.

This question has been frequently before this Court, in several well considered cases. In the case of Smith vs. Thompson, 2 Swan, 386, the facts are: On the 22nd of April, 1826, Robert M. Smith conveyed to William Young; his heirs, executors, etc., a negro slave, Jim, and other slaves, in trust, for the support and use of the wife of said Smith — the trustee to hire and control the slaves for her interest; and after her death, the said negroes, with their increase, to be equally divided between all the children. Robert Smith, the husband, sold the negro, Jim, and executed a bill of sale, conveying the absolute title. The trustee died many years after the sale. The suit was brought to recover the possession, after the death of the tenant for life. The Circuit Judge was of opinion that, the legal title being in the trustee, he being barred by the statute of limitation, the equitable title of those iu remainder was also barred. In commenting on the principles of the case, the Court say: “In trusts created by will, it is a general rule that the trustee in whom is vested the legal estate, takes such interest therein as the purposes of the trust require, and as soon as the trust is satisfied, the legal title will vest, under the will, in the person beneficially entitled.” And, in support of this principle, are cited the cases of Player vs. Nichols, 1 B. and C., 336; Due vs. Mupton, 6 East, 162: “If a limitation to trustees and their heirs be resorted to the life of the tenant for life, the estate of the trustees is thereby cut down to the duration of the life estate. Such an estate is merely a freehold.” 4 Kent, 4. The Court says, “the same principles apply iu respect to real and personal estate, though the terms employed be different.” Under the construction given by the Court to the deed, the children took a vested remainder, and it took effect in possession at the death of the tenant for life, and they were not barred.

In the case of Atkins vs. Smith, 1 Sneed, 304, the principle settled in the case of Thompson vs. Smith, came again before the Court, and was recognized and affirmed in that case. The slaves were conveyed by deed to Ezekiel Akin; his executors, administrators and assigns, forever. A female slave, named Delph, and two children, were also conveyed in trust, to permit his daughter Elizabeth Akin, then a feme covert, to have the use and benefit of the slaves during her life; and at her death, to convey and deliver over said slaves, with their increase, to such children of the said Elizabeth as might then be living. The Court says: “By the express terms of the deed, the trust estate is not to continue beyond the period required by the purposes of the trust. The legal effect of the deed is to convey a vested remainder, to take effect in possession at the death of Mrs. Akin, and on the happening of that event, the complainant, by operation of law, instantly became vested of a legal estate in the slaves. This would be so in a will, and loe see no reason why it should not be so in a deed. In the case of Park vs. Cheek, 4 Cold., 20, the same principle was recognized; and again in 3 Cold., 52, Williamson & Greenlaw vs. Wickersham, the principle is stated and recognized, and approved. I think the principle may now be considered as settled by our Court; that as a general rule, the' trustee in whom is vested the legal estate, takes such interest therein as the purposes of the trust require; and as soon as the trust is satisfied, the legal estate will vest in the person beneficially entitled. This is clearly so in a will, and I can see no reason why the rule should not apply to deeds. And in the cases of Smith vs. Thompson, Akins vs. Smith, Park vs. Cheek, Williamson & Greenlaw vs. Wickersham, the principle was recognized and settled. In those cases, the conveyances were by deeds. These cases are in conflict with the English cases as settled.” In Gunter vs. Baldwin, 2 Ves., 646; Shelby vs. Elam, 4 Adolph & Ellis, 749; Wighham vs. Wighham, 18 Ves., 423, the principle seems to be settled in the English Courts that an express limitation of an estate in fee contained in a deed, will not be cut down merely because a fee in the trustees is not necessary for the purposes of the trust estate. Our Courts having adopted a different rule of construction in their recent decisions, I think it unwise to depart' from it. The rule is purely technical. I can see no good reason for it. It is more consistent with' reason and sound policy, to hold that the trustee takes only such interest as is necessary to support the trust. By giving this construction, it secures the right and prevents the bar of the statute, and will protect those who are, from their non-age or covert-ure, unable to assert their rights. The lands having been sold by the petition of the trustee and "Watkins and wife, by the Circuit Court; the case having been determined upon other questions, I express no opinion upon this question. I am of opinion the complainants are not barred, and their right to recover will depend upon the validity of the sale by the Circuit Court..

George Andrews, J.,

delivered the following opinion on a petition for a re-hearing:

The first ground alleged in the petition for re-hearing, for a reconsideration of the decision heretofore • made, is, that while it is true that the cestui que trust will, as a general rule, be barred of his equitable estate by the same adverse possession which bars the legal estate in his trustee, yet this rule does not apply in a case where the original trustee is deceased, and the legal estate has descended to his heirs prior to the commencement of the adverse possession. In support of this proposition, the case of Porter vs. Greer, 1 Cold., 569, is cited. It is claimed that the heir, in taking the legal estate, takes it in a different manner, and with different duties and responsibilities, from the original trustee.

I do not so understand the law. Upon the decease of the trustee of real estate, the legal estate devolves upon his heir at law; and the heir takes exactly the same estate, and subject to exactly the same duties and responsibilities, as his ancestor. Some expressions used in the opinion of the Court, in Porter vs. Greer, would indicate that the opinion of the Judge delivering that opinion was in favor of the position assumed by counsel for complainants; but that case was totally different from the present, and if any such opinion was intended to be expressed, it was wholly uncalled ■ for. In that case, it appeared that a testator had, by his will, directed that his daughter, Elizabeth Porter, was to be permitted to reside upon a certain tract of land until her youngest child should become of age, at which time it was to be sold, and the proceeds divided among the heirs of the said Elizabeth; but if the said Elizabeth shonld not choose to continue on the land, the executors 'were directed to rent the same till her youngest child should become of age, at which time it was to be sold and divided. The daughter and her husband made an absolute conveyance of the land, which w&s held adversely, under this conveyance, for many years. Upon a bill filed by the children of Elizabeth Porter, before the youngest had arrived at full age, the Court held that the legal estate descended to the heirs at law of the testator; that the executors took nothing but a power, and that the children of Elizabeth Porter were not barred by the adverse possession. The decision in that ease was clearly right; but there was no relation of trustee and cestui que trust between the heirs of the testator and the children of Elizabeth Porter, and the case bears not the slightest analogy to the one before us.

It is further urged for the complainants, that the right of possession, and the right of action to recover the possession, accrued to the complainants only at the termination of the life estate of Mildred B. Watkins; and that, therelore, the statute of limitations did not commence running against them until that time.

A person entitled to a legal estate in remainder is not barred by an adverse possession, accruing and continuing only during the particular estate; for his right to the possession, and his right of action,, do not accrue until the determination of the particular estate. But in the case where the entire legal estate in fee is vested in a trustee, the legal right of possession and right of action is in the trustee, and not in the cestui que trust, and the action to recover the possession must be in the name of the trustee: Hill, on Trustees, 266, 503. There is no right to sue at law for the recovery of the possession, either in the tenant of the equitable life estate, or the person entitled to the equitable remainder. Both are represented by the trustee of the légal estate, and both are barred by such adverse possession as will bar the legal estate of the trustee. Even the possession of the cestui que trust, who is presumed to be tenant at will to the trustee, may become adverse to the trustee by formal denial or disclaimer of the trustee’s rights, or open, notorious dealing with the estate in a manner inconsistent with those rights: Hill, on Trustees, 267.

It is claimed that, as to that portion of the lot in controversy claimed by the Vances, there is not proved such a continuous adverse possession as is necessary to raise the bar of the statute of limitations.

The bill alleges that Joseph Specht claims and holds about twenty-five feet front of the lot, and that the balance is held and claimed by defendants, William L. and Samuel Vance, and that said parties are in possession, and all claim to hold title under Patterson. It is proved that Patterson took possession of the lot in 1850, and held until he sold and delivered possession thereof to Cockrell, in 1852. Cockrell testifies that he occupied the lot till the sale to his vendees, when he delivered the possession to them. Such a possession, affirmatively proved to have existed in Patterson and Cockrell, and to have been delivered by Cockrell to his' grantees, is presumed to have been continuous, till the contrary is proven. “A seizin, once proved or admitted, is presumed to continue until a disseizin is proved:” 1 Green]. Ev., § 42. “The law presumes that a fact, continuous in its character, still continues to exist until a change be shown, as a partnership — or within certain limits, that a life continues, so that a legal or actual possession continues; that an entry and ouster by a landlord upon his tenants continues till a restoration be shown1 Phil, on Ev., 5th ed., 603. 1

We are unable to see any reason for reversing or modifying our former decision in this case.  