be set up to affect the title of a purchaser for a valuable consideration, without notice of the trust. (a)

2nd. Active trusts are where the trustee is clothed with some actual power of disposition or management, which cannot be properly exercised without giving him the legal estate, and actual possession. This is the only efficient class of trusts, and they are indispensable to the proper enjoyment and management of the property. All the provisions in the statute on the subject of trusts, are intended to limit their continuance, and define their purposes, and express trusts are allowed in those cases only in which the purposes of the trust require that the legal estate should pass to the trustees.

Express trusts are allowed. 1st. To sell lands for the benefit of creditors. 2ndly. To sell, mortgage, or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon. 3rdly. To receive the rents and profits of lands, and apply them to the use of any person, or to accumulate the same for the purposes already mentioned. In all these cases, the whole estate, in law and equity, is vested in the trustee, subject only to the execution of the trusts, and if an express trust be created for any other purpose, no estate vests in the trustee, though if the trust authorizes the performance of any act lawful under a power, it becomes valid as a power in trust. Every estate and interest not embraced in an express trust, and not otherwise disposed of, remains in, or reverts to the person who created the trust, and he may dispose of the land subject to the trust, or in case of the failure or termination of the trust, and the grantee or devisee will have a legal estate as against all persons but the trustee. (b)

The declaration of the trust must be contained in the conveyance to the trustee, or the conveyance will be

(a) 4 Kent's Com. 309.

(b) N. Y. Rev. Stat. vol. 1, 728, 729, § 55, 58, 60, 61, 62.

absolute as against the subsequent creditors of the trustee, without notice of the trust, or as against purchasers for a valuable consideration, and without notice. (a)

It follows, of course, that the trust attaches upon the purchaser, with notice of it, unless he be a purchaser from a person who had purchased for a valuable consideration without notice. When the trust is expressed in the instrument creating the estate, every act of the trustee in contravention of the trust is void.

The statute further provides for the case of the death of all the trustees, by declaring that the trust shall not descend to the real or personal representatives of the surviving trustee, but shall be executed in the Court of Chancery under its direction. (b) The court may also accept the resignation of a trustee, and discharge him, or remove him for just cause, and supply the vacancy, or any want of trustees. (c)

These powers conferred upon the Court of Chancery are essentially declaratory of the jurisdiction which equity already possessed and exercised, and it was also well settled, that a trustee who had accepted a trust could not afterwards divest himself of it without performance, unless with the assent of the cestui que trust or under the direction of the Court of Chancery. (d)

But the provision that trusts shall not descend to the representatives of the trustee is very valuable, for the trust, in such a case, might be deposited very insecurely for the cestui que trust, and in the case of chattels there is doubt and difficulty as to the transmission. (e)

(a) Preston on Abstracts, vol. 2, 230. Saunders on Uses and Trusts, 219. Lowther v. Carlton, 2 Atk. Rep. 241. 4 Kent's Com. 179.

(b) N. Y. Rev. Stat. vol. 1, 730, § 64, 65.

(c) Ib. vol. 1, 730, § 68, 69, 70, 71.

(d) 4 Kent's Com. 311.

(e) Dexter v. Stewart, 7 Johns. Ch. Rep. 52. Dunscomb v. Dunscomb, 2 Harr. and Munf. 11. Ridgely v. Carey, 4 Harr. and M'Hen. 167.

Trust property does not pass to the assignees of the trustee, except subject to the trust, and equity will lay hold of trust property passing to the representatives of the trustee, and direct it for the benefit of the cestui que trust. (a)

The English law of uses and trusts was never in force in the states of Connecticut (b) or Louisiana.

The statute law of Alabama enacts, "that in all cases by deed of bargain and sale, or by deeds of lease and release, or by covenant to stand seised to uses, or by deed operating by way of covenant to stand seised to uses, the possession of the bargainor, releasor, or covenantor, shall be deemed heretofore to have been, and hereafter to be transferred to the bargainee, releasee, or person entitled to the use, for the estate or interest which such person hath, or shall have, in the use, as perfectly as if such bargainee, releasee, or person entitled to the use, had been enfeoffed with livery of seisin of the land intended to be conveyed by the said deeds or covenant.'

In Kentucky there is a similar statute. (c) "Estates of every kind holden or possessed in trust, shall be subject to like debts and charges of the persons to whose use, or for whose benefit they were, or shall be, respectively holden or possessed, as they would have been subject to if those persons had owned the like interest in the things holden or possessed as they own, or shall own, in the uses or trusts thereof."

In New Jersey, the statute of Hen. VIII., as respects conveyances, was superseded by a provincial law, passed March 17th, 1719, sec. 7, which enacted, "that all and every person or persons, to whom the use or uses of any tract or tracts of land within the province had been, or should be thereafter, sold, given, limited, granted, re

(a) 4 Kent's Com. 311.

(b) Kirby, 368. Swift Syst. 321, 322. Griffith's Law Register. (c) Dec. 19th, 1796.

leased, or conveyed, by deed, grant, or any other legal conveyance whatsoever, such grantees, their heirs and assigns, should be deemed and taken to be in as full and ample possession of such lands, tenements, and hereditaments, to all intents, constructions, and purposes, as if such grantees, their heirs and assigns, were possessed thereof by solemn livery of seisin and possession, any usage or custom to the contrary notwithstanding." (a)

(a) Griffith's Law Register, p. 1200.

433

CHAPTER III.

OF THE SALE AND PURCHASE OF REAL PROPERTY.

THE three great titles to which the alienation and acquisition of immoveable property may be referred, are sale and purchase, exchange, and gift. The first of these is the subject of the following chapter.

There are certain principles by which, under all systems of jurisprudence, this contract is governed, and which are applied to it, whether the property of which it is the subject be immoveable, moveable, or incorporeal.

The contract of purchase and sale, emptio et venditio, is defined to be an agreement in which, "unus contrahentium rem pro pretio certo et in pecuniâ numeratâ consistente præstare, id est, tradere; alter pretium pro re venditâ dare, ex solâ conventione tenetur. Hunc contractum nudus consensus perficit, id est, parit obligationem, et obligatio actionem, quâ contrahentes coguntur eundem implere, et consummare, id est, rem tradere, et pretium dare, quæ est ultima perfectio istius negotii." (a)

It has been treated by jurists as consisting of three es

(a) Dig. lib. 18, tit. 1, 1. 1, 2, tit. de Actionib. Empti. 1. 11. Inst. de Empt. et Vendit. lib. 3, tit. 24, § 1. Dig. de Rer. Permutat. lib. 19, tit. 4, 1. 1. Dig. lib. 18, tit. 1, 1. 2, 8, 9, 72, de Periculo et Comodo rei Venditæ, J. D'Avezan, lib. Contr. Alt. Tract. 1, de Empt. et Vend. G. Meerman, Nov. Thes. Juris, tom. 4, p. 78.