Zeller's Lessee v. Jacob K. Eckert and Others

Mr. Ingersoll, for the plaintiff in error, said that the opinion of the Circuit Court was, that the plaintiff was barred by limitation. But the widow was directed by the will to hold the property for the child, and both she and her husband were trustees for the child and his heirs. The trust once existed,–that is certain. But the court say that a trustee may disavow his trust, and establish his own right, 'though it is in the utmost bad faith, or in violation of his express agreement.' It is very true that a trustee may disavow his trust, and give notice that he means to hold the property in his own right; and in such case the other party is required to take care of himself. But the law will not sanction bad faith. In the charge of the court, it is said, also, that the effect of the record and writings introduced in evidence was for the court to decide; but the question was a mixed one of law and fact. 7 Wheat. 535; 5 Peters, 438, 440, 491, 493; 11 Peters, 51; 6 Peters, 743; 3 Peters, 48; 4 Peters, 500; 10 Peters, 221, 226. These cases do not sustain the doctrine stated by the Circuit Court, namely, that 'a trustee of any description may disavow and disclaim his trust, though it is in the utmost bad faith, or in violation of his express agreement; from which time his possession of lands, money, or chattels, held under an original trust, becomes adverse, so as to bar an action of account after six years, or an ejectment in twenty-one, after notice of the disavowal, disclaimer, and adverse possession is given to the person entitled to the benefit of the execution of the trust.' The case in 2 Sch. and Lefr. 628, 636, is stronger, it must be admitted, in favor of the doctrine, but the case in 14 Serg. & Rawle, 570, does not bear out the Circuit Court. See 1 Binney, 575, and also 14 Serg. & Rawle, 333.