enter into covenants for the title in the same manner as he would have done, had he sold the estate while solvent.

SECTION V.

IT

Of searching for Incumbrances.

now comes in order to consider in what cases incumbrances should be searched for.

I. There are few cases in which judgments should not be searched for on the part of a purchaser; and if there is any reason to suspect the vendor, it is absolutely necessary to search immediately before the conveyance is executed, lest any judgments may have been entered up during the treaty; although if any judgments should be entered up after the purchase-money, being an adequate consideration, is actually paid, equity would relieve the purchaser against the judgments, notwithstanding that they were entered up previously to the execution of the conveyance; the vendor being, in equity, only a trustee for the purchaser, and a judgment being mérely a general lien, and not a specific lien on the land: and this equity prevails, whether the judgment creditor had or had not notice of the contract (b).

It seems advisable to ask the vendor, or his attorney, whether there are any incumbrances which do not appear on

(b) See Nels. Ch. Rep. 184; Fiach v. Earl of Winchelsea, 1 P. Wms. 278; 10 Mod. 418; 11 Vin.

Ab. 118; and see Kennedy v. Daly,

1 Scho, and Lef. 373.

the

the abstract; for if he answer in the negative, the search for judgments may be postponed until immediately before the execution of the conveyance; and if there are any judg ments, and the purchase cannot be completed on that account, the purchaser can recover all his expenses from the vendor (c). It should scem, however, that the purchaser would equally be entitled to recover the expense of the conveyance, although he had not enquired after, or searched for incumbrances before it was prepared.

A purchaser who, at the time of his contract, is seised of the legal estate, as a mortgagee, need not search for judgments subsequently to the mortgage, for an equity of redemption is not within the clause of the statute of frauds, which will shortly come under our consideration; and it is, therefore, not extendable (d) (I). And as the purchaser will, by the contract, acquire equal equity with the judgment creditor, and has already got the legal estate, his title cannot be impeached. Some gentlemen of eminence even hold, that notice of judgments entered up subsequently to the mortgage will not affect the purchaser; but it is conceived, that if he purchase with notice, either express or implied, of any judgment, the legal estate will not protect him in equity against the judgment creditor. The judgment is a lien upon the estate in equity (e), and confers a right on the cre

(c) Richards v. Barton, 1 Esp. Ca. 268; vide supra, ch. 4.

(d) Lyster v.Dolland, 1 Ves.Jun. +31; 3 Bro. C. C. 478; and see Burdon v. Kennedy, 3 Atk. 739;

Scott v. Scholey, 8 East, 467; Metcalf v. Scholey, 2 New Rep. 461.

(e) Churchill v. Grove, Nels. Cha. Rep. 89; 1 Cha.Ca. 35.

(1) Note. An equity of redemption has been held to be assets under the statute of frauds, 2 Freem. 115, pl. 130; although the determina. tion appears not to have been acted upon. It were much easier to maintain that an equity of redemption is extendable under the statute.— Note, the case of Freeman v. Taylor, 3 Keb. 307, was before the statute.

ditor to redeem a prior mortgage or other incumbrance (ƒ). And by the first principles of equity, a purchaser, with notice of any incumbrance, is bound by it in the same manner as the person was of whom he purchased (g). And, indeed, it has been expressly decided, that a mortgagee, purchasing the equity of redemption, is bound by judgments of which he has notice, although they were entered up subsequently to the mortgage (h).

This doctrine prevailed before the statute of frauds, and has been the observed rule of equity ever since; and it is said, that previously to the statute of frauds, a judgment creditor was in like manner, and upon the same principles, relievable in equity against a conveyance to trustees. And by the 10th section of that statute it is enacted, that execution may be delivered upon any judgment, statute, or recognizance, of all such lands, &c. as any other person or persons shall be seised or possessed of in trust for him against whom execution is so sued, in the same manner as if he had been seised of such lands, &c. of such estate as they be seised of in trust for him at the time of the execution sued, and shall be held discharged of the incumbrances of the trustee. Upon the construction of this statute it hath been holden, that if a trustee has conveyed the lands before execution sued, though he was seised in trust for the defendant at the time of the judgment, the lands cannot be taken in execution (i). Now it is clear, that where the fee is in trustees, the purchaser would not be bound by any judgment, upon which no writ of execution had been sued, and of which he had not notice. But here, as in the preceding case, the purchaser, it is contended in practice, cannot be advised to rely

(f) See 2 Cha. Rep. 180.

(g) See Anon. 2 Ventr. 361, No. 2.

(h) Greswold v. Marsham, 2 Cha. Ca. 170; Crisp v. Heath, 7

Vin. Abr. 52, (E) pl. 2.

(i) Hunt v. Coles, Com. 226; see Higgins v. The York Buildings Company, 2 Atk. 107.

on the legal estate in the trustees, where he has notice of any subsequent judgments. Mr. Powell (k), however, entertained a contrary opinion. After shewing that trust estates can only be taken in execution by virtue of the stastute of frauds, he contends, that where the legal estate is in a trustee, notice to a purchaser of judgments is immaterial, because the lands are not liable at law; and, as equity fol lows the law, no relief would be granted against the purchaser, through the medium of a court of equity.

If the case of Hunt v. Coles be an authority, it must be acknowledged that trust estates cannot be affected by any execution sued upon a judgment after the trustee has conveyed away the lands. But admitting, that before the statute of frauds, an incumbrancer might be relieved against a conveyance to trustees, it should seem to follow, that the same equity must still be administered. It were difficult to successfully contend, that the statute has concluded the equitable relief. The registering acts expressly enact, that a purchaser shall not be bound by instruments, &c. unless they are registered, notwithstanding which equity will fasten on the conscience of a purchaser who bought with notice of any unregistered incumbrance; and there is surely greater reason to hold, that the jurisdiction of equity shall not be barred by a statute which merely gives a partial remedy at law without interfering with the equitable rights of the parties.

The difficulty in the way of the relief would be, that no case can be found, after the most diligent search, in which a judgment creditor has been relieved against a conveyance to trustees, where a purchaser had subsequently acquired the legal estate. The author formerly thought that equity would relieve against the purchaser, if he bought with notice; but his confidence in that opinion has been shaken by the want of authority in support of it. Nothing but a

(4) 2 Mort. 4th Edit. p. 608,

judicial

judicial determination can set the doubt on this point at

rest.

Where, however, an estate is conveyed to trustees upon trust to sell, and pay debts, &c. and to pay the surplus of the monies to arise by sale to the grantor, and the receipts of the trustees are made sufficient discharges to the purchasers; the better opinion is, that the purchaser is not bound by any subsequent judgments of which he has even express notice. Great difference of opinion has prevailed in the profession on this point. Those who hold that a purchaser is bound by such judgments, rightly compare the interest of the grantor in the estate to an equity of redemption. But as such an interest is not extendable, the debt of the judgment creditor can only, it should seem, affect the surplus monies in the hands of the trustees, and is not a lien on the estate itself. When the receipts of the trustees are once made a discharge to the purchaser, there surely is not any equity in a subsequent incumbrancer to require the purchaser to see to the application of any part of the money. The creditor stands, as to his debt, in the place of his debtor, and consequently is entitled to have his debt discharged out of the surplus monies in the hands of the trustees; but he cannot, it is conceived, claim a higher equity; the contrary rule would be productive of infinite inconvenience.

As a mortgagee seised or possessed of a legal estate need not search for judgments; so a purchaser who obtains an assignment of a legal subsisting term of years in trust to attend the inheritance, may dispense with a search for judgments, &c. if he be assured that notice of any incumbrance cannot be proved on him or any of his agents. But as notice may be inferred from very slight circumstances, a purchaser cannot be advised in any case, or under any circumstances, to dispense with the usual searches. And even where he does rely on a term of years, yet if it be recently created, incumbrances should be searched for previously to the creation of the term.