1803. υ. Ld. DUNSA NY. Ld. DUNSANY V. ing a creditor in possession more deeply accountable than the debtor. According to common conception, a party getting LATOUCHE into possession as custodee merely goes into possession to recover his own debt, and not with a view to clear the estate : there is no instance of his being called to account by a person having merely a power to sue execution, but not having actually done so or taken any steps towards it. Shirley v. Watts, 3 Atk. 200. This doctrine would equally extend to creditors by bond or note, who have all as much as judgment creditors a potential right of proceeding against the estate. Whether the judgment creditor will ever issue his elegit is a matter which entirely rests with himself: neither the creditor in possession nor any other has any mode of ascertaining it. His title to rents and profits is only from his elegit and inquisition: as a judgment creditor he has no title to the land; Brace v. Duchess of Marlborough, 2 P. Wms. 491. If Warren had filed a bill to bring Messrs. Latouche to an account, they could not say, you are indebted by judgment, and we will not account with you but with your judgment creditors; and if this be so, the judgment creditors cannot now file a bill to oblige the Messrs. Latouche to account otherwise than as they could have been compelled to do by Warren; and as against him they would be entitled to credit for the rents received by him or Chamley. Creditors are not curators for each other; each is left to himself, and there is no hardship in this, for it is open to. all to use the same diligence. If the Messrs. Latouche had not been in possession, Warren would have been the person all this time entitled to the pernancy of the profits. Lord Dunsany never complained during the life of Warren, and it was as great a fraud in him to lie by and see the rents misapplied as in Messrs. Latouche so to misapply them. In all the cases the subsequent creditors appear to have used due diligence and to have been delayed, and the creditor in 1803. LATOUCHE v. Ld. DUNSA NY. v. possession appears knowingly to have so delayed or permitted them to be delayed. Upon the second question-Messrs. Latouche had a right Ld. DUNSANY to tack the mortgage of 1786 to the prior mortgage, and LATOUCHE. thereby to have it discharged prior to Lord Dunsany's mortgage and prior to the intervening judgments. If there were no registry act, a party having no notice of intervening incumbrances at the time of advancing his money, might, if he could obtain a prior legal title, squeeze them out by. tacking: Then consider whether there is any thing in the act to prevent this. When the act says "Every deed not "registered shall be deemed fraudulent and void," it must 'mean a deed prior in point of date, for as against a subsequent deed no protection was required: the act therefore could not mean to make void this deed which is subsequent to the judgments; and if so there is nothing to prevent all such uses as might be made of it prior to the act as against the judgments, and so it may be tacked to the prior mortgages. So too it must be as against Lord Dunsany's mortgage, for according to any other construction it must be held that the original equity of this court is altered by force of the act, and that a person having a legal priority without notice, shall be deprived of it in favour of an intervening incumbrancer, merely by force of the registry. This may be compared to the case of Collet v. De Gols and Ward, Cus. Temp. Talb. 65, where equity refused to take the legal estate from Ward, unless upon payment of the sums advanced after the bankruptcy without notice, though the words of the bankrupt laws are as strong for avoiding all acts done after bankruptcy of those of the registry act to avoid the unregistered deed. (The court observed that it was now he constant practice for the assignees to compel a redemption on payment only of what was advanced before the 1803. V. -bankruptcy). Besides, Lord Dunsany could only take what Mr. Warren had then to give, and he could only give LATOUCHE subject to Messrs. Latouches' mortgage, and the words of the : act are" according to the right, title, and interest of the 66 person conveying," &c. To prove that creditors could not sustain this suit, they cited Utterson v. Mair, 4 Bro. C. C. 270. As to the claim of Messrs. Latouche to be allowed against the other creditors the full amount of the judgments assigned to them by Chamley; although the act enabling an assignment of judgments gives all equity against the assignee -which might be had against the conuzee, yet that could only render it necessary to inquire of the conuzor whether he had any equitable objection to make to the judgments, and here the conuzor had joined in the assignment; they could not therefore have had any cause to suspect that any of these were satisfied judgments. Lord CHANCELLOR. The questions in this case are brought to a pretty narrow compass when the circumstances are considered. Mr. Warren is in possesion of an estate subject to a variety of incumbrances, by mortgage and by judgments,and under these circumstances Mr. Latouche gets into possessi on of the estate as assignee of a custodiam obtained by Mrs. Trant, and also as being himself a custodiam creditor: after being in this situation he deals with the estate through the medium of his attorney Mr. O'Brien with Mr. Warren's attorney, Mr. Chamley: and he is the only creditor as far as I can find who receives any thing out of the estate; the rest of the rents VOL. I. X Ld. DUNSA NY. Ld.DUNSANY υ. LATOUCHE. May 20. 1803. LATOUCHE v. Ld. DUNSA NY. v. possession appears knowingly to have so delayed or permitted them to be delayed. Upon the second question-Messrs. Latouche had a right Ld. DUNSANY to tack the mortgage of 1786 to the prior mortgage, and LATOUCHE. thereby to have it discharged prior to Lord Dunsany's mortgage and prior to the intervening judgments. If there were no registry act, a party having no notice of intervening incumbrances at the time of advancing his money, might, if he could obtain a prior legal title, squeeze them out by, tacking: Then consider whether there is any thing in the act to prevent this. When the act says "Every deed not "registered shall be deemed fraudulent and void," it must mean a deed prior in point of date, for as against a subsequent deed no protection was required: the act therefore could not mean to make void this deed which is subsequent to the judgments; and if so there is nothing to prevent all such uses as might be made of it prior to the act as against the judgments, and so it may be tacked to the prior mortgages. So too it must be as against Lord Dunsany's mortgage, for according to any other construction it must be held that the original equity of this court is altered by force of the act, and that a person having a legal priority without notice, shall be deprived of it in favour of an intervening incumbrancer, merely by force of the registry. This may be compared to the case of Collet v. De Gols and Ward, Cas. Temp. Talb. 65, where equity refused to take the legal estate from Ward, unless upon payment of the sums advanced after the bankruptcy without notice, though the words of the bankrupt laws re as strong for avoiding all acts de after bankruptcy o those of the registry act to avoi unregistered dee |