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 con sidered 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. Att. Gen. i Vern. 340. Dowse 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. for Felony. 32. It was determined, in the case of the Attorney Not forfeited 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. Wms. 33. 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 Shirley v. Fagg, discover any writings or other things, which may 1Cha. Ca. 68. weaken his title : nor will the Court of Chancery take 1 Vern. 52. any advantage from him, by which he may defend Saunders, himself at law. 491. 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 pur- Vide Wortley chasing without notice gives him equal equity with 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. 103. : * 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... 763. 36. In the case of Willoughby v. Willoughby, Lord 1 Term R. Hardwicke, after stating the origin and nature of trust terms for years, proceeds in these words :"What kind of grantee or owner of the inheritance ante, § 7. is entitled in this Court to the protection of such a term? or in other words, in whose hands such à term shall be allowed to protect the inheritance? In the first place, he must be a purchaser for a price paid, or for a valuable consideration; he must be a purchaser bonæ fidei, not affected with any fraud or collusion; he must be a purchaser without notice of the prior conveyance, or of the prior charge or incumbrance; for notice makes him come in fraudulently. If he has no notice, and happens to take a defective conveyance of the inheritance; defective either by reason of some prior conveyance, or of some prior charge or incumbrance; and if he also take an assignment of the term to a trustee for him ; or to himself, where he takes the conveyance of the inheritance to his trustee; in both these cases he shall have the benefit of the term to protect him. That is, he may make use of the legal estate of the term to defend his possession; or if he has lost the possession, to recover it at common law, notwithstanding that his adversary may at law have the strict title to the inheritance. This made me say, that in those cases the Court often disannexes the trust of the term from the legal fee; but still in support of right. For if a man come in fairly and bona fide, and has paid a price for the land, and acquired an estate in it, which the law will support, (a plank by which at law he may save himself from sinking), there can be no ground in equity or conscience to take it from him. This is the meaning of what is generally expressed by saying, that where a man has VOL. I. LI both law and equity on his side, he shall not be hurt in a court of equity. It was once doubted, whether, if the term were vested in a third person, a trustee generally, and not in the party himself, he should be allowed the benefit of it in equity; because the Court ought to determine for whom the stranger was a trustee; and then the rule is, qui prior est tempore, potior est jure. But this was settled by Lord 2 Vern, 599. Cowper, in the case of Wilker v. Boddington. He lays it down to be a rule in equity, that where a man is a purchaser for a valuable consideration, without notice, he shall not be annoyed in equity; not only where he has a prior legal estate, but where he has a better right to call for the legal estate than his adversary." Saunders v. 2 Vern. 271. 37. Where a term for years is vested in a trustee, upon an express trust, a purchaser shall not protect himself by taking an assignment of such term, after notice of the trust. 38. Ann Bayley being possessed of a term for years, made a voluntary settlement thereof, in trust for herself for life, remainder to her daughter Isabella for life, remainder to her children. Isabella mortgaged the lands in question for £200 to the plaintiff, who pretended he had no notice of the settlement; but hearing of it after, he got an assignment of the term from the trustees. Per cur.-Though a purchaser may buy in an incumbrance, or lay hold of any plank to protect himself, yet he shall not protect himself by the taking a conveyance from a trustee, after he had notice of the trust. For by taking a conveyance with notice of the trust, he himself becomes the trustee; and must not, Vide Tit. 15. to get a plank to save himself, be guilty of a breach of c. 5. trust. |