Where no question of this nature arises, a purchase in the name of a child, or wife, or other relation, is prima facie to be considered an advancement for that child; and in order to repel this presumption, evidence must be given of a contrary intention, contemporaneous with the purchase; (a) and the onus probandi does not rest with the child. (b)

Where the vendor claimed the estate by purchase from his son, the purchaser is entitled to evidence of the fairness of the transaction, (c) as it will be thought that some undue advantage has been taken by the parent. (d)

If a purchase be in any way affected with fraud, or if the vendor has had an unfair advantage taken of him, equity will interfere and decree a reconveyance of the estate. But if, knowing all the circumstances, a vendor chooses to sleep on his rights, and allow a considerable time to elapse before attempting to set aside the purchase, he will be unable to do so, even in equity. Thus, if he allow twenty years to pass, if the property consist of land, (e) or six years, it would seem, if it be personal estate, (ƒ) he will be barred for ever of his relief; (g) which period will be calculated

(a) Murless v. Franklin, 1 Swanst. 17. Prankerd, v. Prankerd, 1 Sim. & Stu. 3. Finch v. Finch, 15 Ves. 50. Rider v Kidder, 10 Ves. 36; 11 Ves. 377.

(b) Redington v. Redington, 3 Ridg. P. C. 106. 178.

(c) Boswell v. Mendham, 6 Mad. & Geld. 373; and see Kinchant v. Kinchant, 1 B. C. C. 369. Brown v. Carter, 5 Ves. 862.

(d) See also M'Queen v. Farquhar,

11 Ves. 479; and post, Chap. XXIX.

(e) Townsend v. Townsend, 1 B. C. C. 550, S. C.; 1 Cox, 28. Hovenden v. Lord Annesley, 2 Sch. & Lef. 607. 636. Medlicott v. O'Donel, 1 Ball & B. 156. 165. Whalley v. Whalley, 1 Mer. 436; 3 Bli. 1.

(f) Booth v. Earl of Warrington, 4 B. P. C. Toml. edit. 163. South Sea Company v. Wymondsell, 3 P. Wms. 143.

(g) See Matt. on Pres. 384.

from the time of the completion of the purchase. (a) And the rule will be the same, although the vendor labour under great pecuniary difficulties, and be, in fact, incapacitated by poverty from prosecuting his claim. (b)

But if the vendor remains ignorant of the fraud, his rights will not be prejudiced. (c)

If an executor convey leasehold property to others, with the intent to defraud legatees, if the legatees, knowing the fraud, do not pursue their rights for twenty years afterwards, they will, in like manner, be barred of all equitable relief. (d)

So that a defect of this nature may be held to be remedied in twenty years, if the property be land, and of six years, if the property be personalty.

The lapse of time, however, will not, it seems, render valid the sale of a reversionary interest originally invalid, (e) if the same difficulties which induced the purchase have prevented the setting it aside. But when these circumstances do not exist, if twenty years be allowed to elapse without any attempt to set aside the purchase, the sale, even of a reversionary interest, will become valid. (ƒ)

ubi sup.

(a) Hovenden v. Lord Annesley, Medlicott v. O'Donnell, ubi sup. Western v. Cartwright, Sel. Cha. Ca. 34. Earl of Deloraine v. Browne, 3 Bro. C. C. 633. Hickes v. Cooke, 4 Dow. 16.

(b) Per Lord Redesdale, 2 Sch. & Lef. 640. See also Hickes v. Cooke, 4 Dow. 16. Moromy v. Dea, 1 Ball & B. 109. Willaume v. Gorges, 1 Camp. 217; but see Flading v. Winter, 19 Ves. 196.

(c) Alden v. Gregory, 2 Eden, 280. Roche v. O'Brien, 1 Ball & B. 330. Hatch v. Hatch, 9 Ves. 292.

(d) Bonney v. Ridgard, 1 Cox, 145; 17 Ves. 97, 98. Andrew v. Wrigley, 4 B. C. 6. 125; 5 Madd. 153.

(e) See ante, p. 80. Per Sir Wm. Grant, M. R. Gowland v. De Faria, 17 Ves. 20. See also Roche v. O'Brien, 1 Ball & B. 330. Dunbar v. Tredennick, 2 Ball & B. 304.

(f) See Earl of Deloraine v. Browne, 3 B. C. C. 632. Moth v. Attwood, 5 Ves. 845. Medlicott v. O'Donel, 1 Ball & B. 156. Whalley v. Whalley, 3 Mer. 436; 3 Bli. 1. Roche v. O'Brien. 1 Ball & B. 330.

XVI. ILLEGITIMACY.

This defect has been already alluded to. (a)

If there be a limitation in favour of the first son of A., through whom the title is deduced, as his legitimacy is implied, there should be a certificate of the birth of such son, of the marriage of his parents, and an affidavit of his legitimacy.

Where a title depends on the valid marriage of an infant, it must be seen that he or she was married with the consent of the proper person. Thus, if a guardian were appointed by the Court of Chancery, it must be shown he consented to the marriage, or the issue will be illegitimate. (b)

XVII. BREACHES OF TRUST AND DESTRUCTION OF CONTINGENT REMAINDERS.

A clear breach of trust on the part of a trustee, or any other person in the situation of a trustee, will be a

decided defect in a title.

At one time, the destruction of contingent remainders would have amounted to a breach of trust; but now, although equity discountenances the destruction of contingent remainders, (c) yet if they are actually barred, a purchaser will be compelled to accept a title dependant on their destruction. (d)

(a) See ante, p. 267.

(b) See 1 Prest. Abs. 47; and see ante, p. 267.

(c) Roake v. Kidd, 5 Ves. 647.

(d) Kenn v. Corbett, M. S. Sug. V. & P. 328, 8th ed. Biscoe v.

Perkins, 2 Ves. & Bea. 485. Hasker, v. Sutton, 2 Sim. & Stu. 313; 9 J. B. Moo. S. C.; 1 Bing. 500; but see Savage v. Taylor, Ca. temp. Talbot 238, 9. Roake v. Kidd, 5 Ves. 647.

And it seems, indeed, to be established, that if cestui que trust join with his trustees in an act amounting to a breach of trust, he will be precluded from complaint; and eminent judges have thought that although he do not originally concur in it, if he acquiesce in it for a considerable length of time, he will be barred of his rights. (a)

(a) Per Lord Eldon, Brice v. Stokes, 11 Ves. 319; and 3 Swanst. 64. Per Sir W. Grant, M. R, Lang

ford v. Gascoyne, 11 Ves. 333. sed quære; and see post, Chap. XXIX. and Index, word Trustee.

CHAPTER XXI.

OF INDEMNITIES AGAINST DEFECTS IN ABSTRACTS OF TITLE.

WE shall now shortly consider a subject of considerable practical importance,-whether a purchaser will be compelled to take a defective title, if a complete and effectual indemnity can be given him against the defect. Of course, if a purchaser be willing to accept the indemnity, the only question will be the mode of preparing it; but it has been doubted whether, if an unexceptionable indemnity be offered to a purchaser, a court of equity will not compel him to take a defective. title. It may be urged on the one hand, that all that a purchaser can demand is a fair equivalent for his purchase-money; and if this be effectually secured to him, he should rest satisfied: and, on the other hand, it may be said, that a purchaser is entitled to the secure and quiet enjoyment of the particular property which he purchases, and, that if he be liable to eviction from it, however remote the chance may be; or if his possession be in any way deteriorated or disturbed, he should not be compelled to take the property, al