Read v. Power

That where an absolute interest is given to the cestuis que trust, without any control in the trustee, it is, as a general rule, alienable, is pretty well settled. Perry on Trusts, §§ 386-388 ; 1 Cruise Dig. *407, *843.

In the present case we cannot consider the estate as executed in the cestui, because the trustee has still a duty to perform, i. e. to convey the estate upon a certain event which, it is agreed, has happened.

Where the cestui has occupied for a long time, a court will, in some cases, direct a jury to presume a conveyance from the trustee, if necessary to perfect the legal title; and where a court would direct a jury to do it, the court may well act themselves upon the same presumption. 1 Cruise Dig. *415.

In the present case we do not think the circumstances would warrant acting upon any such presumption.

A decree may be made for a specific performance of an agreement to convey an equitable estate if it be so expressed in the agreement. Sugden Vend. & Pur. cap. 8, sec. 2, § 2. In the 8th Amer. ed., by Perkins, cap. 5, sec. 3, § 50.

But as in this case the agreement does not specify it to be an equitable estate, the purchaser is entitled, if he chooses, to have the estate perfected by a conveyance from the trustees, at the expense of the vendor, otherwise he ought not to be obliged to accept the title.

Note. — For a commentary on this case see Amer. Law Register, N. S., vol. 17, p. 561. September, 1878.