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1804,

KENNEDY

DALY.

Salisbury v. Bagzot, 1 Ch. Cas. 278, doubted.

On that subject I did feel doubts, but I am now satisfied that the non-claim ought not to operate as a bar to the plaintiffs. The fine operated nothing: it cannot alter the estate, and if at law the estate be not altered, there is no. thing to be claimed against the fine, the title being the same as before. There are cases in which it seems as if courts of equity, judging a little from analogy to cases at law, have held a fine and non-claim to operate where I think it ought not to have operated, but I doubt whether these cases very accurately apply to the present. Salisbury v. Baggot, in the 28th of Charles 2d, 1 Ch. Cas. 278. That was a bill to have articles made sixty years before on good consideration, carried into execution: the defendants insisted on a fine and non-claim; the Lord CHANCELLOR was of opinion with the plaintiffs in several other points touching notice, &c. but dismissed the bill on the ground of the fine, on the authority of a case of Cary v. Sir Thomas Flynn ; that case I think will not be considered as an authority for Salisbury v. Baggot, if the case was as reported: but all these cases are very imperfectly stated. That was a bill to be relieved from a conveyance which Cary had improperly obtained, to which Cary pleaded a fine and non-claim. Possibly the opinion of the judges in that case, referred to by the Lord CHANCELLOR, may have been founded on an idea that the conveyance might have been avoided at law, and if so, the conveyance would have operated as nothing, and then the estate was gained by wrong, and the fine and non-claim would have barred. Therefore the authority on which that case of Salisbury v. Baggot is stated to have been decided does not seem to be a good authority for the decision: and it is observable that the reporter of that case puts a quære, and seems to doubt its authority, at least as he himself reports is.(a) ;

(a) Vid, a short note of this case, 2 Freem. 21, and as there reported it is certainly contrary to all the decisions.

V.

Then came the case of Bovey v. Smith,(a) in the 34th 1804. year of Car. 2; six years after Salisbury v. Baggot was de- KENNEDY cided. 'There it certainly was determined originally that a

Daly. fine with proclamations would not bar the claims of a person claiming under a trust: the bill was afterwards dismissed (6) on other grounds, and on grounds that really seem satisfactory: that case is very capable of being sustained without bringing forward the fine and non-claim to support the title of the defendant.

Fine and non

claim will not The ground of the decision that the fine and non-claim bar a person would not bar, was, that the fine was merely a conveyance, a trust if to a

claiming under and if merely a conveyance to a person with notice of the person having

notice of the trust, it did not alter the estate , it did no more than any trust : it is

merely a conother conveyance; it did not extinguish the trust, nor sepa- ves

veyance. rate it from the lands. So, if Mr. Daly had made a con

So if trustee

conveys to a veyance to another person with notice of the trust, and taken person with back a re-conveyance, this would have operated nothing; it notice and would not have altered the estate : nay, if a trustee conveys veyance it ope

rates nothing to a person who has no notice of the trust, and then takes a

So if the person re-conveyance, he having notice of the trust, it attaches on to whom he

conveyed had him, though it would not on a person not having notice; if a no notice, yet third person had become a purchaser, he would have held on the re-con

veyance, the discharged of the trust.

tach, though it

did not attach The case put by the Lord Keeper in 1 Vern. 149, is on the person to

whom he condirectly in point: he put it thus; a person taking by con- veyed ; nor veyance from a trustee with notice levies'a fine to strengthen tached if that

would have athis estate ; and the counsel were all of opinion that that person had conwould not bar the cestui que trust. Therefore, in the 34th ther without of Charles 2d, six years after the decision in Salisbury v. notice.

One taking Baggot the opinion of all the bar is that under such circum- from a trustee stances a fine would not bar: now, here the fine was

with notice, levied

levies a fine to strengthen his

estate : this (a) 2 Ch. Cas. 194; 1 Eq. Abr. 256, 384 ; 1 Vern. 60.

shall not bar (6) 1 Vern. 84, 144.

the cestui que

takes a re-con

trust would at.

1804.

KENNEDY

V. DALY.

directly according to these circumstances; it was levied by a trustee to a person having notice of the trust; it is the very case put by my Lord KEEPER. Various cases have been determined according to this opinion in 1 Vern. and I find no decision to the contrary. Thus a mortgagee cannot by fine and non-claim bar the equity of redemption ; for the fine displaces nothing; it is still the same estate.

There is a case of Martin v. Martin, in the House of Lords, referred to in Vin. Abr. title Fraud (A.) Pl. 12, determined on the 6th March 1744, where it is said to have been decided that a fine and non-claim should not protect a fraudulent purchase, but that the conusee should be deemed a trustee for the equitable title: it is said to be taken from Lord HARCOURT's tables, which are extremely accurate. But I have not been able to find the case.

Of a case of Baker v. Prichard, I have a short MS. note of Lord HARDWICKE's ; that a fine levied by a person in possession under articles, of a matter which is in dispute

between two parties, shall not operate till the dispute is deterA person

mined between them. The person there was let into posses:

a title which is sion, until the question of right could be determined : in bound by an the mean time, he levies a fine ; he seems to have had no equitable right, cannot by levy. previous estate ; the fine therefore operated to give him a ing a fine dis

degree of title which he had not before, yet it was held that it charge his estate from the should not operate to injure the parties who had let him into consequences of that right.

possession in confidence. It is a general rule that whoever comes in under the possession of one whose legal right is bound by an equitable title, though he take by fine, shall be bound, if he have notice,

In the case of Lord Portsmouth v. Vincent, (cited in Lord Pomfret v. Lord Windsor, 2 Ves. 476) tenants at will in possession under a letting by a receiver in the court of

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Chancery, were by the neglect of the parties in the cause, 1804. suffered to remain in possession for a great number of years KENNEDY and not called on for their rent; they levied fines and in

DALY. sisted on them as a bar: but Lord HARDWICKE said, “ No,

you gained possession as tenants under the receiver of " the court ; you gained that possession therefore in confi“ dence, and you shall not by means of that possession defeat " the title of the persons for whom you had the possession;" and he would not suffer the fine and non-claim to be a bar.

I conceive therefore that where a fine is levied upon a possession gained in such a way that the title on which the equity attaches is not altered, or where the possession is gained on a confidence, and it is attempted to make title contrary to that confidence, a fine and non-claim will make no bar; and therefore I cannot hold that the fine in this case is a bar to the plaintiff.

The next question in this case is, on the title in the plain, tiff to come into a court of equity at the time he has come in, for the purpose of demanding a specific performance of the articles. The plaintiff is the eldest son of Thomas Kennedy, and it is objected to him that he did not bring himself within the provisions in the act of 1778; and certainly, as far as the evidence is before me, he did not take the oaths within the time limited by the act of 1778, and therefore if that were the only act on the subject, I could not relieve him. (His neglecting to take the oaths in due time would however make no alteration in the title of Mr. Daly; he would still hold the estate unconscientiously: the only alteration it could make, would be in Mr. Kennedy's right to sue.) But the act of 1793 says expressly that persons taking the oaths prescribed by that act shall be relieved from all disabilities, &c. and that, without any exception of

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the pendency of suits, and without any limitation in point of time whatever: the result of which must necessarily be, that the rights which would belong to Roman Catholics if they had complied with the terms of the act of 1778, would (notwithstanding that they had neglected to do so) be capable of being asserted by their taking the oaths under the act of 1793: this was the manner in which that act must have been intended to take effect. But it could not affect prior rights; for example, if previous to 1793 a protestant discoverer had filed a bill, insisting that he ought to have this estate, I cannot see what answer there could be to such a demand ; there he would have been exactly in the circumstances which Mr. Kennedy would have been in if he had taken the oaths prescribed by the act of 1778. Mr. Kennedy's right would have been controuled by the demand of the protestant discoverer, but Mr. Daly's would have continued the same. The effect of the act of 1793 was, that the estate which Mr. Kennedy look before for the benefit of a protestant discoverer, he then took for his own benefit.

The question then is, what decree I ought to make under these circumstances; and I think I ought to decree that Owen Daly having become a purchaser of this estate under the circumstances of the case, is to be taken as having purchased the estate from Thomas Kennedy with notice of the articles of 1764: that therefore he cannot protect himself against the plaintiff claiming' under the articles, but to the extent of those incumbránces which were vested in him and were prior to the articles, the one in point of time, the other in point of lien. Therefore it must be referred to the master to take an account of what was due on the foot of the judgment to Mrs. Clarke, and the rents and profits must be set against the interest of that judgment. And the same with respect to his demand under Mr. Farrell's judgments. Beyond this I am not aware that Mr. Daly can be permitted

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