Page:Harvard Law Review Volume 1.djvu/18

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way in which the owner of an obligation can realize his ownership is by compelling its performance by the obligor. Hence, in the one case, the owner is said to have a right in rem, and, in the other, a right in personam. In other respects the common rules of property apply equally to ownership of things and ownership of obligations. For example, what may be called the passive rights of ownership are the same in both cases. The general duty resting upon all mankind not to destroy the property of another, is as cogent in favor of an obligee as it is in favor of the owner of a horse. And the violation of this duty is as pure a tort in the one case as in the other.[1]

The law of transfer is also the same for both forms of property. Take, for instance, the case of land. The owner may diminish his interest (1) by a transfer of the whole or an aliquot part of the land either permanently or for a time; (2) he may grant a rent charge issuing out of the land; or (3) he may charge himself with a trust or other equity in regard to the land. If, after diminishing his interest in either of the first two modes mentioned, he should make an ostensible conveyance of the whole land to an innocent purchaser, the latter would take only the diminished interest of his grantor; whereas, if he should make a similar conveyance after reducing his interest, in the third mode, the purchaser would take the legal title unincumbered. No reason occurs to the writer why a cestui que trust of land may not deal with his interest in the obligation of the trustee in a similar way, and with similar consequences. He certainly may transfer the whole or an aliquot part[2] of the obligation, and he may grant a rent charge issuing out of it[3] and he may also charge himself as trustee, or subject himself to any other equity in regard to the obligation. It is also true, that if the cestui que trust, after diminishing his interest by an assignment, should make an ostensible conveyance of his trust to an innocent purchaser, the latter would take subject to the previous

  1. From the nature of the case such a tort must be of rare occurrence. But instances may be put. B, a cestui que trust, assigns his trust to A, and afterwards, before the trustee is informed of the assignment, releases the trust to the trustee, as in Newman v. Newman, 28 Ch. D. 674. A’s right against the trustee is destroyed. Again, suppose that C, a stranger, had maliciously incited B to make the release. A’s claim against B and C would be for compensation for a purely equitable tort. Compare Lumley v. Gye, 2 E. & B. 216; Bowen v. Hall, 6 Q. B. Div. 333.
  2. Tierney v. Wood, 19 Beav. 330; Cas. on Trusts, 189. The obligation of a trustee is, from its nature, divisible, differing in this respect from most obligations.
  3. Phillips v. Phillips, 4 D., F., & J. 208; Cas. on Trusts, 433.