Law of Vend. Collect. Jur. granted to a trustee for Sir A. C., with a nominal reversion of eleven days to the trustee of Mrs. R. The question was, whether this term was in gross, or attendant. Lord Thurlow said, every term standing out was, at law, a term in gross. If it was different in equity, it must be by affecting the person holding the term, with a trust, to attend the inheritance. This might be by two ways; by express declaration; and then, whether the term would, or would not merge, and whether the reversion were real, or only nominal, it must be attendant on the inheritance. Here it was not upon express declaration; then it must arise from implication of law, founded on the statute of frauds, which forbids any trust, except by writing or implication of law. It was said to be extremely plain that Sir A. C. meant to consolidate the interests: this was begging the question. It was true, he meant to take the largest interest he could; but it was by no means apparent that he meant to consolidate the interests. He laid no stress on the days of reversion, for it was meant only as a nominal reversion: during that time the rent would be to the original lessor; but they did not mean to reserve a substantial interest. It would be necessary there should be an express trust to make this attendant on the inheritance. The transaction did not supply a necessary construction of law. It was a very nice and new point, whether the intent to purchase the whole interest was sufficient to make the term attendant upon the inheritance. The impossibility he was under of purchasing the whole, rendered an express declaration necessary to make it attend the inheritance. 26. Mr. Sugden has observed on this case, that it seemed impossible to reconcile those parts of the judgement which are printed in Italics. But that it appeared from an opinion of Mr. Fearne's, in consequence of which the cause was reheard, that rents were reserved upon the leases granted by the trustees to Sir A. C., and the usual covenants were entered into by him; the trustees being restrained to that mode of making a title by their trust, which required a reservation of rent, and the usual covenants: this fact at once reconciled every part of the judgement. Lord Thurlow was of opinion, that the reversion itself was immaterial; but that the rents reserved by the leases rendered an express declaration necessary, to make the terms attend the inheritance. Mr. Fearne was also of opinion, that the terms would not be attendant, if there was any intervening estate, and beneficial interest, in any third person; to divide the ownership of the term from the inheritance. But as he was told that the rents reserved to the trustees upon the terms, were afterwards purchased by Sir A. C., he thought the terms did attend the inheritance, although there was not an express declaration for that purpose; and he expressly delivered his opinion, subject to this fact, which he had learned from verbal information only. By Lord Thurlow's decree on the rehearing, it appears clearly that the rents were not purchased; and consequently that Mr. Fearne was misinformed. become a Gross. 27. In the case of Willoughby v. Willoughby, Lord A Term AtHardwicke says "A term attendant on the inhe- tendant may ritance may be disannexed, and turned into a term Term in in gross, by the absolute owner of the inheritance; and so it is admitted by Serjeant Maynard in the Duke of Norfolk's case: or it may be made to be- 3 Cha. Ca.46. come a term in gross, upon a contingency; according to the resolution in that case." Tit. 38. c. 19. 28. So it is said by Lord Com Raymond, that where 9 Mod. 127. a man has a term for years, which, by intendment of A Term at- I Vent. 194. V. 1. 297. law only, attends the inheritance, certainly he has a power to sever such a term from the inheritance, if he should assign it to one man, and mortgage the inheritance to another; in such case the term would not attend the inheritance, but become a term in gross. 29. Terms attendant on the inheritance are considered as absolutely annexed to the inheritance, and constituting part of it; and are therefore not subject Collect. Jur. to those rules by which terms in gross are governed. They follow the descent to the heir, and all alienations made by him. They are capable of being entailed, and limited over after a general failure of issue, provided the inheritance on which they are attendant is limited in the same manner. And where, in cases of this kind, a common recovery is suffered of the inheritance, it will bar the entail, and remainders over of the term, as well as those of the freehold; for the term can no longer attend an estate tail which is destroyed, nor can the trustee, who is but an instrument to protect others, have the term to his own use; so that it must thenceforth attend on the inheritance in fee. 1 Term R. 766. Tit. 38. c. 5. Is real Assets. Thruxton v. 1 Vern. 340. Dowse v. Derival, 30. A term attendant on the inheritance is so fully considered as part of the inheritance, and not as a chattel real, that it does not pass by a will of chattels, but only by a will executed in such a manner as is necessary to pass real estates. 31. A term attendant on the inheritance is real assets, in the hands of the heir, for payment of all such debts as are chargeable on the inheritance; because it is annexed to the inheritance, which is real assets. Where the inheritance is in trustees, and a person has a term in his own right, which is limited to attend the inheritance, and dies indebted, the term will be liable to his debts; for it is assets at 1 Vern. 104. law, and equity follows the law. 32. It was determined, in the case of the Attorney Not forfeited for Felony. General v. Sir G. Sands, that the trust of a term ante, c. 2. attendant on the inheritance was not forfeited by the § 28. attainder for felony of the cestui que trust; because it was no more than an accessary to the inheritance, which was not forfeited. protect Pur cumbrances. 1Ab. Eq.333. 2 P. Wins. 38. One of the great objects of the common law, Trust Terms is to protect and secure honest purchasers. It is to chasers from this principle that fines and nonclaim, descents which Mesne Intake away entries, and collateral warranties, owe their origin and effect. The courts of equity, whose duty it is to follow the common law, soon adopted the same doctrine; and laid it down as a rule, that an honest purchaser, without notice of any defect in his title, or of any incumbrance on the estate, at the time of his purchase, shall not have his title impeached in equity; neither shall he be compelled to discover any writings or other things, which may weaken his title: nor will the Court of Chancery take any advantage from him, by which he may defend himself at law. 491. Shirley v. Jerrard v. 2 Ves. Jun. 454. § 1, 2, 3. 34. In consequence of these principles, it has been Treat. of Eq. long settled by the Court of Chancery, that where B. 3. c. 3. a person purchases an estate, without having notice, at the time of his purchase, of any incumbrance affecting it; if he afterwards finds out that there are incumbrances, and upon such discovery, obtains an assignment of a prior outstanding term for years, whether in gross or attendant, to a trustee for himself; the Court of Chancery will not interfere, to set aside such a term, though it be a satisfied one; so that the purchaser, having a good title at law, by means of the term, will be thereby secured from such mesne incumbrance. 35. The reason is, that the circumstance of his purchasing without notice gives him equal equity with Vide Wortley v. Birkhead, Tit. 15. c. 5. the mesne incumbrancer; and by obtaining an assignment of a prior term, he acquires the legal estate; so that he comes within the maxim, that where equity Francis, 61. is equal, the law must prevail. Besides, the mesne incumbrancer having only a title in equity, cannot prevail against one who has an equal title in equity, and also the legal estate; it being a maxim in Chancery, that in aequali jure melior est conditio possidentis. Lord Nottingham has said, that precedents of this kind are very ancient and numerous, where the Court has refused to give assistance against a purchaser, either in favour of the heir or the widow, the fatherless or creditors; or to one purchaser against another. * Finch's R. 303. * Lord Hardwicke has thus explained this doctrine: “As to the equity of this Court, that a third incumbrancer, having taken his security or mortgage without notice of the second incumbrance, and then, being puisne, taking in the first incumbrance, shall squeeze out, and have satisfaction before the second. That equity is certainly established in general, and was so in Marsh v. Lee, (Tit. 15. c. 5. § 29.) by a very solemn determination by Lord Hale, who gave it the term of the creditor's tabula in nanfragio: that is the leading case. Perhaps it might be going a good way at first; but it has been followed ever since, and I believe was rightly settled, only on this foundation, by the particular constitution of the law of this country. It could not happen in any other country but this, because the jurisdiction of law and equity is administered here in different courts, and creates different kinds of rights in estates. As courts of equity break in upon the common law, where necessity and conscience require it, still they allow superior force and strength to a legal title to estates; therefore, when there is a legal title, and equity of one side, this Court never thought fit that by reason of a prior equity against a man who had a legal title, that man should be hurt; and this by reason of that force this Court necessarily and rightly allows to the common law, and to legal titles. But if this had happened in any other country, it could never have been made a question. For if the law and equity are administered by the same jurisdiction, the rule, qui prior est tempore, potior est in jure, must hold. 2 Vesey, 573. |