such person seised to the use shall be adjudged in cestui que use, &c. 1 Co. 126 a; and if these requisites do not concur, there can be no execution of the use. Therefore contingent uses, during the suspence of the contingency, cannot be executed by the statute. Bac. Uses, 45. 1 Sand. 194. Uses limited of copyhold estates, also, are not within the statute of uses. Co. Copyh. 54. Cro. Car. 44. 2 Ves. 257. And as the statute was made previously to the statute of wills, 32 & 34 H. 8, it seems to follow, that the former does not extend to devises to uses. But as the testator's intention is generally the guide in cases of devises, it has been repeatedly determined, that if A. devise to B. and his heirs, to the use of, or in trust for C., and his heirs, or in trust to permit C. and his heirs to take the profits, it shews, that the testator intended, that C. should have the legal estate in fee; and the law will therefore give the devise such an operation. 1 Vern. 79. 415. 2 Salk. 679. 2 Atk. 575. 2 P. Wms. 134. Doe, d. Leicester v. Biggs, 2 Taunt. 109. Brydges v. Wotton, 1 Ves. & B. 137. But it is clearly settled that in the case of a devise to the use of A. for life, remainder over, this cannot take effect by way of use executed by the statute, because there is no seisin to serve the use; but still the cestui que use will have the legal estate. 1 Sand. 206. So although a feoffment in fee to the use of the feoffor for life, and after his decease that J. S. shall take the profits, be an use executed in J. S.; yet it is clear that if there be a conveyance in trust to pay over the profits, (Symson v. Turner, 1 Eq. Ab. 383. Silvester v. Wilson, 2 T. R. 444. 15 Ves. 371. Shapland v. Smith, 1 Bro. C. C. 75. Doe, d. Leicester v. Biggs, supra), or to convey, (Roberts v. Dixwell, 1 Atk. 607. Bac. Uses, 8), or to sell, (Bagshaw v. Spencer, 2 Atk. 578), the legal estate will west in the trustees in order to enable them to pay over the profits. So it is in case of a trust to permit a féme covert to receive the profits, or to pay the same to her separate use. Pybus v. Smith, 3 Bro. C. C. $49. Henry v. Purcel, Fearn. 75. Nevill v. Saunders, 1 Vern, 415. Bush v. Allen, 5 Mod. 63. As to the extent of the legal estate vested in trustees under trusts of the above description, see Doe, d. White v. Simpson, 5 East. 162. Jones v. Say and Sele, 8 Vin. 262, pl. 19. 3 Bro. P. C. 113. 1 Ves. 144 Bagshaw v. Spencer, 2 Atk. 570-577. 1 Ves. 142-144. Gibson v. Rogers, Ambl. 93. Wright v. Pearson, ib. 360. Harton v. Harton, 7 T. R. 65%. It has been determined, that terms of years or other chattel interests cannot be limited to uses, as the statute speaks of persons seised to the use of another, and the word "seised" is only applicable to the possession of a freehold estate. Bac. Uses, 42. And that no use limited upon a use can be executed by the statute; and therefore if there be a conveyance to the use of A. and his heirs, to the use of B. and his heirs, this use cannot be executed in B. Tyrrel's case, Dyer, 155 a. Samback v. Dalton, Toth, 1 Atk. 591. So if land be limited to A. and his heirs to the intent, or in trust that B. and his heirs may receive a rent thereout to the use of C. and his heirs, the legal estate in the rent will vest in B. by the fifth clause of the statute, because the seisin, out of which the rent arises, is con veyed to A. and upon the limitation of such rent to B. the statute is satisfied. Chaplin v. Chaplin, 3 P. Wms. 229.

2dly. As to the nature and general doctrine of trusts.-The strict construction which the judges put on the statute of uses, in determining that there were uses to which the statute did not transfer the possession, de feated, in a great measure, its intent: as by this means uses were not entirely abolished, but still continued separate and distinct from the legal estate; and were taken notice of and supported by the court of chancery, under the name of trusts. A trust is therefore a use not executed by the statute 27 H. 8; for originally the words use and trust were perfectly synonimous, and are both mentioned in the statute. But as the provi sions of the statute were not deemed co-extensive with the various modes of creating uses, such uses as were not provided for by the statute, were left to their former jurisdiction. 1 Bl. Rep. 156. 1 Cru. Dig. 458. And this jurisdiction extends not only to trusts declared upon a legal estate in fee, but to those declared upon the estates of tenants in tail, for life, and years, and to special trusts. A trust, generally speaking, may be defined to be, a right on the part of the cestui que trust to receive the profits, and to dispose of the lands in equity. 1 Mod. 17. But in the case of spe cial trusts for the accumulation of profits, the sale of estates, or the conversion of one trust fund into another, the cestui que trust cannot interfere until such special trust be satisfied. 1 Sand. 214. There is a dis tinction between a trust executed, and a trust executory. A trust executed, is where an estate is conveyed to the use of A. and his heirs, with a

simple declaration of the trust for B. and his heirs, or the heirs of his body; in which case the trust is perfect, and it is said to be executed, because no further act is necessary to be done by the trustee to raise and give effect to it; and because there is no ground for the interference of a court of equity to affix a meaning to the words declaratory of the trust, which they do not legally import. So, in the case of a will, a trust is said to be executed, where the testator has given complete directions for settling his estate, with perfect limitations. A trust executory, is where articles of agreement are made in contemplation of marriage, and consequently preparatory to a settlement, or where in a will the testator's directions are incomplete, and are rather minutes or instructions. In the cases of trusts executed, legal expressions will have a strict legal effect, as in immediate devises at law, though, perhaps, contrary to the testator's intention, Shaw v. Weigh, 1 Eq. Abr. 184. Jones v. Morgan, 1 Bro. C. C. 206. Poole v. Poole, 3 Bos. & P. 620; but in the cases of executory trusts, the court will consider the intention, and direct the conveyance according to it, White v. Carter, Ambi. 91. Garth v. Baldwin, 2 Ves. 655; and words of limitation," as heirs of the body", will be construed as words of purchase, if the testator has, by expressions in his will, shewn an intention that they should not be construed in the former sense. Glenorchy v. Boswell, Ca. Temp. Talb. 319. Papillon v. Voice, 2 P. Wms. 471. Bagshaw v. Spencer, 2 Atk. 570. 581. White v. Carter, Ambl. 670. Bastard v. Proby, 2 P. Wms. 478. n. Read v. Snell, 2 Atk. 642. Leonard v. Earl of Sussex, 2 Vern. 526. Roberts v. Dixwell, 1 Atk. 607. Et vid. Stanley v. Stanley, 16 Ves. 491. 1 Mad. Ch. 446. 1 Sand. 248, 249. The execution of executory trusts created by deed, is the same as of executory trusts created by will. 12 Ves. 227. Anté, vol. 1. p. 775. n. (I). And in the execution of an executory trust the court will direct a limi tation to be inserted in the settlement to preserve contingent remainders, Baskerville v. Baskerville, 2 Atk. 279. Stamford v. Hobart, 3 Bro. P. C. 31; and both in wills (Green v. Stephens, 12 Ves. 419. 17 Ves. 64. Marryatt v. Townley, 1 Ves. 102. 104.) and marriage articles, cross-remainders may be_raised by implication. Twisden v. Lock, Ambl. 663. West v. Erissey, 2 P. Wms. $49. Duke of Richmond v. Lord Cadogan, cited 17 Ves. 67. Ante, vol. 1. p. 774, 775. n. (I). As to the difference between a trust and an equity of redemption, see ante, p. 38. n. (Z). Tucker v. Thurston, 17 Ves. 133. Besides the direct modes of creating a trust estate by limiting a use upon a use, by limitations to trustees, to pay over the rents, or for the separate use of a married woman, or to sell, or raise money, and by limiting copyhold estates, or terms for years in trust, which have been already noticed, there are several other cases in which trust estates arise from the evident intention of the parties, which are enforced by the court of chancery, and are usually called resulting trusts, or trusts by impli cation. As where articles are entered into for the purchase of an estate, a trust immediately results to the purchaser. 1 Chi. Ca. 39. Acherley v. Vernor, 9 Mod. 78. So where an estate is purchased in the name of one person, and the money or consideration is paid by another, there is a resulting trust in favor of the person who paid the consideration. Lloyd v. Spillet, 2 Atk. 150. Willis v. Willis, 2 Atk. 71. Gascoigne v. Thuring, 1 Vern. 366. Finch v. Finch, 14 Ves. 50. And it is the same with respect to a joint advance upon a purchase in the name of one. Wray v. Steele, 2 Ves. & B. 388. And such resulting trusts by implication of law need no declaration of trust, but are saved by the 20th section of the statute of frauds, which provides "that all conveyances, where trusts and confidences shall arise or result by implication of law, shall be as if that act had never been made." 1 P. Wms. 112. 2 Ventr. 361. And it may be here remarked, that, though this statute enacts that all declarations and creations of trusts of lands or hereditaments must be in writing, yet a note, or memorandum in writing, from a trustee, promising to execute a declaration of trusts (Bellumy v. Burrow, Ca. Temp. Talb. 97.), or confessing that he purchased lands with another man's money (Lane v. Dighton, Ambl. 409. Ambrose v. Ambrose, 1 P. Wms. 322. Ryall v. Ryall, 1 Atk. 59.), or a bond from a trustee, either to perform the trusts of a conveyance, in which no trusts are mentioned (Goodwin v. Cutter, Finch. 356.), or to make an assignment, as his cestui que trust shall direct (Moorcroft v. Dowding, 2 P. Wms. 314.), or a recital in a purchase deed, that the consideration money be longed to a third person (Kirk v. Webb, Prec. Ch. 84. Deg v. Deg, 2 P. Wms. 415. Ryall v. Ryall, supra.), an answer in chancery, confessing a trust (Hampton v. Spencer, 2 Vern. 288. Cottington v. Fletcher, 2 Atk. 155.), or a letter from a trustee disclosing the purposes of a devise to

him (Crooke v. Brookeing, 2 Vern. 106.), or any writing in the shape of mutual covenants or articles of agreement (Legurd v. Hodges, 3 Bro. C. C. 531.), relative to the transfer or produce of land, although without seal or stamp (Hodsden v. Lloyd, 2 Bro. C. C. 534.), if they properly dis, cover the intention of the parties, are sufficient, in a court of equity, to create trusts. And any words, in a will, intimating, or in the nature of a request, wish, desire, recommendation, &c. are sufficient to create a trust, if the object of the gift, and the gift itself, can be correctly ascertained, Eales v. England, Prec. Ch. 200. Cloudsley v. Pelham, 1 Vern. 411. Jones v. Nabbs, 1 Eq. Abr. 404. pl. 3. Richardson v. Chapman, 1 Burn. Eccl. Law, 225. Vernon v. Vernon, Ambl. 3. Clifton v. Lombe, Ambl. 519. Massey v. Sherman, Ambl. 520. Nowlan v. Melligan, 1 Bro. C. C. 489. Pierson v. Garnett, 2 Bro. C. C. 38. 226. Davis v. King, 2 Bro. C. C. 200. 1 Sand. 252. Taylor v. George, 2 Ves. & B. 378. Birch v. Wade, 3 Ves. & B. 198; but if the certainty of the gift and object fail, then the trust must also fail, although the intention to create it should appear evident upon the face of the will. Harding v. Glyn, 1 Atk. 469. Le Maitre v. Bannister, 2 Bro. C. C. 40. Bland v. Bland, 2 Bro. C. C. 43. Harland v. Trigg, 1 Bro. C. C.142. Wynne v. Hawkins, 1 Bro. C. C. 180. Sprange v. Bernard, 2 Bro. C. C. 585. Pierson v. Garnett, supra. Hill v. Bishop of London, 1 Atk. 620. Note, that when an estate is vested in trustees in fee-simple, in trust to raise a sum of money, without specifying the particular mode of raising it, the trust will authorize a sale, Baines v. Dixon, 1 Ves. 41. Wareham v. Brown, 2 Vern. 153. Newman v. Johnson, 1 Vern. 45. 8 Vin. 461. pl. 7, 8. n.; and that a trust to raise money by "rents and profits" will empower the trustees to sell (Gibson v. Rogers, Ambl. 93. 8 Vin. 461. pl. 7, 8, 9, 10, 11. Lingen v. Foley, 2 Ch. Ca. 205.), unless there are some words to restrain the sense of those words to annual profits. Joy v. Gilbert, 2 P. Wms. 13. Evelyn v. Evelyn, 2 P. Wms. 665. Mills v. Banks, 3 P. Wms. 8. Anon. Vern. 104. Green v. Belcher, 1 Atk. 506. 1 Sand. 253. It is also observable, that the statute of frauds does not extend to the declaration or creation of trusts of mere personalty. See Nab v. Nab, 10 Mod. 404. Fordyce v. Willis, 3 Bro. C. C. 587. To return to the case of a purchase in the name of a stranger,-in all cases of this kind, the payment of the money must be clearly proved. Willis v. Willis, 2 Atk. 71. Such proof may appear either from expressions or recitals in the purchase deed, 2 Vern. 168. Prec. Ch. 104. Kirk and Webb, Ib. 84. cited 1 Sand. 258; or from some memorandum or note of the nominal purchaser, O'Hara v. O'Neal, 2 Eq. Abr. 745; or from his answer to a bill of discovery, Cothington v. Fletcher, 2 Atk. 155. Sed vid. Edwards and Moore, 4 Ves. 23. cited 1 Sand. 258; or from papers left by him, and discovered after his death, Ryall v. Ryall, Ambl. 413. Lane v. Dighton, Ib. 409; and it seems that parol evidence is admissible, though after the death of the supposed nominal purchaser. See Lench v. Lench, 10 Ves. 511. But where a purchase, either of a feesimple or a reversion (Finch v. Finch, 14 Ves. 50.), is made by a father. in the name of a child, legitimate or illegitimate (Loft. 490. Fearn. Post. 327. 2 Fonbl. Eq. 124, 125.) (if in the name of a grandchild, the father being alive, Ebrand v. Dancer, 2 Ch. Ca. 26. it might be different, see Lloyd v. Read, 1 P. Wms. 60.), this distinguishes it from the case of a stranger, in which there is not that natural affection, that would repel the presumption arising from the advance of the money; and it will, unless some precedent declaration can be proved (Lord Gray's cast, 2 Freem. 6.), be considered as an advancement of the child, and not as a trust for the father, though the father takes the profits during the minority of the child. Mumma v. Mumma, 2 Vern. 19. Lamplugh v. Lamplugh, 1 P. Wms. 113. Taylor v. Taylor, 1 Atk. 386. Stileman v. Ashdown, 2 Atk. 480. Finch. 340. Reddington v. Reddington, 3 Ridgw. P. C. 106. But it might be different, if he received the rents and profits after the child was of age (Lloyd v. Read, 1 P. Wms. 608.), especially if the child was of age when the estate was purchased, 2 Mad. Ch. 99; and the presumption in favor of an advancement, is liable to be rebutted by subsequent acts. Lord Gray's case, supra. Pole and Pole, 1 Ves. 76. A pur chase by the father in the names of his son, and a trustee (Lamplugh v. Lamplugh, 1 P. Wms. 111.), or, as it seems, in the name of himself and his son (though this has been doubted, 2 Átk. 480.), will still be consi dered as an advancement. Scrope and Scrope, 1Ch. Ca. 27. Buck and Andrews, 2 Vern. 120. Dyer v. Dyer, 1 P. Wms. 112. 1 Watk. Copyh. 216. Finch v. Finch, 14 Ves. 50. But in these instances, the father will have the benefit of survivorship in case the son die during his minority;

though the son is not entitled to the benefit of survivorship as against the judgment creditor of his father. Stileman v. Ashdown, supra. S. C. Ambl. 13. It seems in all these cases, that if the son is provided for at the time of the purchase in his name, he will be but a trustee, and stands in the same_predicament as a stranger, Elliott and Elliott, 2 Ch. Ca. 232. Pole and Pole, supra. Lloyd v. Read, 1 P. Wms. 607; but it has been determined, that a reversion settled on the son, expectant on the mother's death, is not such a provision as will prevent the son taking. Lamplugh v. Lamplugh, supra. So it seems, if a husband purchases lands in the name of his wife, it will be presumed, in the first instance, to be an advancement and provision for the wife, Rider and Kidder, 10 Ves. 367. Buck v. Andrews, 2 Vern. 67. 128. Batch v. Andrews, Ch. Ca. 53. Sed vid. Smith v. Baker, 1 Atk. 385; for the wife cannot be a trustee for her husband. Kingdon v. Bridges, 2 Vern. 67. It may be further observed, that where a purchase is made by a trustee with trust money, a trust will result to the owner of the money. Ryal v. Ryal, Ambl. 413. So where a trustee or guardian renews a lease in his own name, the renewed lease shall in equity be subject to the former trust, Keech v. Sandford, Sel. Ca. Ch. 61. Holt v. Holt, 1 Ch. Ca. 191. Pierson v. Shore, 1 Atk. 480. Abney ▼. Miller, 2 Atk. 597. Edwards v. Lewis, 3 Atk. 538. Et vid. Ex parte Bennett, 10 Ves. 395. Brewett v. Millett, 7 Bro, P. C. 367. Tomlins edit. Annesley v. Dixon, Ib. 213. Featherstonhaugh v. Fenwick, 17 Ves. 298; even when it is clear that the lessor would not have renewed for the benefit of the cestui que trust. Fitzgibbon v. Scanlan, 1 Dow. 161. And if a lease be settled upon A. for life, with remainders over, and A. obtains a renewal of the lease, the renewed lease shall be bound by the trusts of the will or settlement. Tuster v. Marriott, Ambl. 668. Raw v. Chichester, Ib. 715. Owen v. Williams, Ib. 734. Pickering v. Vowles, 1 Bro. C. C. 197. Coppin v. Fernyhough, 2 Bro. C. C. 291. Killick v. Flexney, 4 Bro. C. C. 161. James v. Dean, 11 Ves. 383. 15 Ves. 236. But there can be no implied trust between a lessor and lessee; because every lessee is a purchaser by his contract and his covenants, which ex cludes all possibility of implying a trust for the lessor. Pilkington v. Bayley, 7 Bro. P. C. 383. It is also observable, that where a person conveys an estate to a trustee, upon such trusts as he shall appoint, and no appointment is made, there will be a resulting trust for the grantor. Fitzg. 223. And where an estate is conveyed to a trustee, and a trust is declared as to part only (Lloyd v. Spillett, 2 Atk. 150.), or where the whole of an estate is conveyed for particular purposes, or on particular trusts only, which, by accident or otherwise, cannot take effect, a trust will result to the original owner, or to his heirs. Prec. Ch. 162. 541. 1 Cru. Dig. 475. We have seen, that in the absence of express or demonstrable intention to the contrary (Kirkman and Milles, 13 Ves. 338.), it is a rule of equity, that money directed to be laid out in land, and land directed to be sold and converted into money, are to be considered as that species of property into which they are directed to be converted. Ante, vol. 1. p. 559. n. (9). Et vid. Doughty v. Bull, 2 P. Wms. 323. Attorney-General v. Johnston, Ambl. 580. Robinson and Taylor, 2 Bro. C. C. 589. Williams and Coade, 10 Ves. 500. Berry and Usher, 11 Ves. 87. Gibbs and Ougier, 12 Ves. 415. But where a person dealing upon his own property only, has directed a conversion for a particular special purpose, or out and out, but the produce to be applied for a particular purpose; when the purpose fails, the intention fails; and a court of equity regards him as not having directed the conversion. Ripley v. Waterworth, 7 Ves. 435. Et vid. Townley v. Bedwell, 6 Ves. 194. In cases of wills, therefore, as in deeds, it is important to consider, whether the testator meant to give to the produce of the real estate the quality of personalty, to all intents, or only so far as respected the particular purposes of the will; for unless the testator has sufficiently declared his intention, not only that the realty shall be converted into personalty for the purposes of the will, but further, that the prodnce of the real estate shall be taken as personalty, whether such purposes take effect or not, so much of the real estate, or the produce thereof, as is not effectually disposed of by the will at the time of the testator's death (whether from the silence (Collins v. Wakeman, 2 Ves. 687.) or the inefficacy of the will itself, or from subsequent lapse), will result to the heir. See Cruse v. Barley, 3 P. Wms. 22. n. 1. and the cases there cited. Et vid. Randall v. Bookey, 2 Vern. 425. Stonehenge v. Erelyn, 3 P. Wms. 253. Ackroyd and Smithson, 1 Bro. C. C. 503. Robinson and Taylor, 2 Bro. C. C. 589. S. C. 1 Ves. jun. 44. Kennel v. Abbot, 4 Ves. 810. Stansfield v. Habergham, 10 Ves. 278.

Williams and Coade, 10 Ves. 500. Berry and Usher, 11 Ves. 87. Gibbs and Ougier, 12 Ves. 415. Hooper v. Goodwin, 18 Ves. 156. Hill v. Cock, 18 Ves. 174. Chambers v. Brailsford, 18 Ves. 369. Gibbs v. Rumsey, 2 Ves, & B. 294. If the intention is to convert it into personal property, for all the purposes of the will, though some of those purposes should fail, and though in consequence of that failure part results to the heir, it would result to him as personal estute, and be so considered in a question be tween his representatives. 16 Ves. 191. Et vid. Hewitt and Wright, 1 Bro. C. C. 86. Kidney v. Coussmaker, 2 Ves. jun. 268. 2 Mad. Ch. 110, 111. If a sum of money be devised in trust to be laid out in land, and the uses to which the land should go are not declared, the benchit of that money, it seems, will go to the heir at law, as a resulting trust. Hayford v. Benlows, Ambl. 582. So on the other hand, if a real estate be devised to be sold, and no particular directions are given, how the purchase money should be applied, in whole or in part, the money undisposed of, will, it seems, go to the executor, to be applied in a course of distribution, or to a residuary legatee of the personal estate, if any such there be. Ibid. 583. So where a testator creates an executory trust, or devise, to take effect within the limit allowed by law, and makes no disposition of the intermediate beneficial interest, the trust or equit able estate will descend to the heir, until the contingency happens, upon which the equitable executory devise is to arise. 1 Sand. 263. Fearn. Ex. Dev. 537. Hopkins v. Hopkins, 1 Atk. 584. S. C. Fort. 44. and in MS. Attorney-General v. Bowyer, 3 Ves. 725. Stanley v. Stanley, 16 Ves. 491. Thus, on a devise of an estate to a person, when he attains twenty-one, there results a trust for the heir until that period; and by the previous death of the devisee the remainder will be accelerated. Chambers v. Brailsford, 18 Ves. 368. But upon a devise to a good charitable use, the heir has no right to the rents and profits accrued before the use is carried into effect. Attorney-General v. Bowyer, supra. In case there be a devise of real estate for payment of debts, and nothing more is meant than to make a provision for the debts, all beyond what is required for that purpose, will remain real estate, and as such go to the heir, Wright and Wright, 16 Ves. 191. Hill v. Cock, 18 Ves. 174. King v. Denison, 1 Ves. & B. 272. Southouse v. Bate, 2 Ves. & B. 396; the general principle being, that the heir takes all that, which is not for a defined and specific purpose given by the will, Chitty v. Parker, 2 Ves. jun. 271. But although, where the whole legal interest is given for the purpose of satisfying trusts expressed, and those trusts do not in their execution exhaust the whole, so much of the beneficial interest as is not exhausted, belongs to the heir; yet where the whole legal interest is given for a particular purpose, with an intention to give to the devisee of the legal estate the beneficial interest, as, for instance, if one gives to A. and his heirs all his real estate, charged with his debts; in this case, if the whole is not exhausted by that particular purpose, the surplus goes to the devisee, it being intended to be given to him. King v. Denison, 1 Ves. & B. 272, 273. It may be further observed, that, though voluntary con veyances may be good and effectual, yet circumstances of fraud, mistake, or the like, may convert a grantee under a voluntary conveyance, into a trustee. Duke of Norfolk v. Browne, Prec. Ch. 80. 1 Eq. Abr. 581. 1 Freem. 305–308. 2 Atk. 150. And wherever any fraud is committed in obtaining a conveyance, the grantee in such conveyance will be considered in equity as a trustee for the real owner. Fearn. Cont. Rem. 479. And it is a rule in equity, that all persons coming into possession of property bound by a trust, with notice of the trust, shall be considered as trustees, Daniel v. Davison, 16 Ves. 249. Adair v. Shaw, 1 Sch. & Lef. 262; though they take by fine. Kennedy v. Daly, 1 Sch. & Lef. 579. And if a purchaser has notice of the trust before the execution of the conveyance, he is bound, though he had no notice when he paid his money. Wigg v. Wigg, 1 Atk. 384. But where a man by deed or will charges, or orders an estate to be sold for payment of debts generally, and then makes specific dispositions, the purchaser is not bound to see to the application. Jenkins v. Hiles, 6 Ves. 654. n. Where a person purchases an estate, which he sees himself has a defect upon the face of the deeds, yet a fine will be a bar, and notice will not affect him so as to make him a trustee for the person who has the right; for the defect upon the face of the deed is often the occasion of fines being levied. Story v. Lord Windsor, 2 Atk. 631. A fine and non-claim to or by a person, having notice of the trust, will not bar the cestui que trust. A mortgagee, therefore, cannot by fine and non-claim bar the equity of redemption. Kennedy v. Duly, 1 Sch. &