QUESTIONS

RELATIVE TO THE

EXTENSION OF LEGAL REMEDIES TO EQUITABLE

OWNERS.

[Referred to, suprà, 181.]

These Questions were prepared by the Real Property Commissioners, some time after the Plan for a General Registry had been matured.

1. Do you think that a person having a beneficial estate might be allowed to sue at law against a wrong doer, or an adverse claimant, without using the name of the trustee of the mere legal estate?

2. Would there be any danger or inconvenience in giving a Court of law jurisdiction to determine that the legal estate is, or has become, a mere naked or passive trust, which ought not to interfere with the remedies of the beneficial owner?

3. As beneficial estates are enjoyed and transmitted to heirs or representatives, with some few exceptions, according to the rules of law, is there any sufficient reason for protecting the enjoyment, and determining questions as to the transmission of them, only by means of courts of equity?

4. If the technical rules which require certain artificial forms of conveyance of legal estates (as lease and release) and which prevent any transfer of some legal interests (as contingent estates) were taken away, and equitable estates were thus still more assimilated to legal estates, would not the reason for confining the jurisdiction to the Court of Chancery be diminished?

5. And ought not the technical rules to be taken away?

6. In case of a trust being a mere naked or passive trust, either by its creation, or from its purposes having ceased, do you think that the beneficial owner might be allowed to recover possession in a court of law from a trustee holding adversely to him?

7. Or does the possibility that the trustee may have some claim for disbursements constitute a sufficient objection to this proceeding? 8. Might not the act of parliament be so worded as to exclude the

jurisdiction at law from cases of executory trusts, or trusts by implication or construction, or to arise by the decree or declaration of a court of equity, so as to give the jurisdiction only in cases of direct trusts created by deed or will?

9. If purchasers by registering their deeds were enabled to acquire priority over prior unregistered rights, do you not think that the rule which enables a purchaser for valuable consideration without notice to defeat a prior equitable right by getting in an outstanding legal estate might be taken away?

10. Is that rule agreeable to substantial justice?

11. Supposing that mere legal estates were no longer serviceable as protections against secret estates, and that they could not be set up at law against the beneficial owner, would not the inconveniences attending outstanding legal estates be at an end, and might not outstanding legal estates be neglected by purchasers? (a)

12. Would not this greatly facilitate the making out of titles and the completion of conveyances?

13. When trusts are created for purposes which may not require them to be called into action for a certain period, and which do not interfere with the intermediate enjoyment or transmission of the property affected with the trust, such as, trusts for raising portions, securing annual payments, &c. which may be called dormant trusts, do you not think that the persons to whom the property belongs beneficially subject to such dormant trusts, may be allowed to sue at law against wrong doers, and adverse claimants, in their own names?

14. If the trust is not to be called into action until a future period certain, as, trusts for raising portions for younger children after the decease of parents, may not such dormant trusts be put, in the mean time, on the footing of a mere passive trust, so as not to interfere with legal actions?

15. If the trust, though immediate, does not require to be called into action, as a trust for securing an annual payment which the owner of the property keeps down, might not the beneficial owner be allowed to sue at law against wrong doers, and adverse claimants, with the consent of the trustee, and might not the consent of the trustee afford sufficient evidence in the court of law that the trust did not require to be called into action against the plaintiff: And might not a mortgagee, not in possession, be considered to be a trustee of the same description?

(a) See the Tract referred to in the Preface to this work, where the ten. dency of a Registry, carrying notice, to render the legal estate worthless, had been pointed out.

16. And would not such provision afford facilities for trying rights in some cases in which courts of equity will not either determine them or send them to law, without taking previous accounts, and going through enquiries unconnected with the right to be tried, and would not this be a very beneficial effect?

17. How ought such consent to be evidenced?

18. Ought such consent to be averred in the pleadings, or would it not be sufficient to prove it at the trial?

19. Might the consent be withdrawn before trial?

20. If such consent were capriciously and unjustly refused, might not a court of equity have discretion to condemn the trustee, whose refusal would make an equity suit necessary, in the costs of the suit, or at least to refuse him his costs of such suit?

21. Might not the proposed legal jurisdiction be given so as not to take away the jurisdiction of equity in the same cases?

22. But if a court of equity were resorted to unnecessarily, and especially if it were resorted to by way of appeal from the decision at law, might not the court of equity have a discretionary power to condemn the party in costs?

23. Would not such enactments tend to confine the jurisdiction of courts of equity in matters of trust to the enforcement of trusts, and the administration of active trusts, and the relieving against breaches of trust?

24. Would not such effect be beneficial?

The following Questions seem to be Supplemental.

When the legal estate in possession is outstanding in a trustee, who has no interest or duty, for a term or other partial interest, might the person claiming the legal estate in remainder and the beneficial interest in possession, be allowed to sue at law against a wrong doer or adverse claimant, in the same manner as if an injunction had been granted by a court of equity against setting up the legal estate?

Might a person claiming a beneficial interest, but having no legal estate, be allowed to sue at law against a wrong doer, or person claiming adversely to the title of the trustees in whom the same legal estate may be vested, without using the name of such trustee?

Might a person claiming a beneficial interest be allowed to sue at law against a person claiming adversely an equitable interest, subject to the same legal estate?