to perform a contract for sale or mortgage, and that the Court acted upon her separate property by considering a security, in which she joined, as an appointment. He could not, without the consent of the defendant, order the property to be either sold or mortgaged. Accordingly, the decree was for satisfaction out of the rents and profits.1

It has been held that a wife may, by joining in a bill with her husband, appoint her separate estate for his debts; that is, if a feme covert, having power to receive the profits of an estate to her separate use, and to appoint such profits in any manner she should think proper, files a bill, jointly with her husband, for an account, and submitting that the profits should be applied to the payment of the debts of the husband, and a decree to that effect is made, the bill to which she is thus a party, without collusion, is as much an execution of her power as an actual appointment would have been. The profits, in that event, will be bound by the decree.

Such is a rapid, though, we trust, not altogether faint outline of a few of the most prominent topics connected with this important and somewhat intricate doctrine of English law. The student ought, for himself, to consult the particular cases from which the materials of this essay have been principally drawn; there being few of them which do not present the general principles under a combination of circumstances and qualified by peculiarities which are not to be found elsewhere. Analogous they frequently are, but seldom exactly similar. The subject, however, is not exhausted; and we shall take an early opportunity of resuming the discussion of it.

E. R.

As a point of practice it is not unworthy of remark, that a decree may be made by consent in a cause, relating to the separate property of a married woman, in which she and her husband are co-plaintffs. A doubt as to the regularity of such a proceeding having been expressed by the Registrars in the case of Stinson v. Ashley, (Russell's Ch. Rep. vol. 5, p. 4), Sir John Leach was of opinion that the cause might be heard by consent, and ordered the decree to be drawn up.

* Allen v. Papworth, 23 Nov. 1748. Vide 1 Ves. 164; 2 Ves. 191.

ART. III-PRACTICAL POINTS.

I. A Judgment v. An Equitable Mortgaye. LORD Cottenham's judgment in Whitworth v. Gaugain,1 has naturally enough strongly excited the attention of the public. The facts were briefly these, George Cooke, a solicitor, having obtained a loan of money from certain bankers, deposited title deeds of property with them with a memorandum in writing that they were deposited in pledge to secure to the bankers the repayment of the sum lent with interest, and that he, Cooke, engaged if required to execute any legal mortgage or other security of the premises and land to the bankers. After this deposit, actions were commenced by two parties against Cooke which were not defended, and Cooke signed cognovits in both, and judgment was forthwith entered up against him, whereupon elegits were sued out and the creditors were put in possession each of separate parts of the property comprised in the deeds deposited with the bankers. The bankers then filed their bill in chancery charging that the judgments were concerted and fraudulently obtained, and that the elegits were void. The Vice Chancellor Shadwell granted an injunction, and on an appeal to the Lord Chancellor he entered fully into the question, and after discussing the evidence as to the fraud imputed his lordship observed, "At the bar, however, in the argument, a totally different turn was given, or attempted to be given, to the plaintiffs' case. It was attempted to be said, that at law, independently of the question of fraud, that by law the plaintiffs had a preferable title to the defendants. Now, if that be so, it is quite immaterial to the plaintiff whether the elegits were fraudulent or not; in short, it would be a hopeless piece of fraud to manufacture that, which, when manufactured, would have no effect against the plaintiffs' equity. It is clear therefore, that was not the ground on which the bill was filed. The bill prays that these judgments and elegits may be set aside as fraudulent and void as against the plaintiffs, with which the plaintiffs had nothing whatever to do, if they stood in the situation in which they had a preferable equity, an equity which would give them a preferable title as against the title now claimed by the defendants. It is quite sufficient for

15 Jur, 523.

me.

the present purpose to say, that is not the case made. It is on totally different grounds. It is not made in the pleadings, it was not made in the argument before the Vice Chancellor, and it is only suggested when it comes to be argued before I therefore abstain from going further into that case than to say that if such a point had been made; if the bill had been framed for that purpose, and the claim of the plaintiffs founded on that supposed equity, I should have required a great deal more to satisfy me of the validity of that equity before I could interpose by interlocutory order; because I find these defendants in possession of a legal title, although not to all intents and purposes an estate, yet a right and interest in the land which, under the authority of an act of parliament, they had a right to hold, the elegit being the creature of an act of parliament, and therefore they have a parliamentary title to hold the land as against all persons, unless a case of equity should be made to induce this Court to interfere."

We must first advert to the nature of the title acquired under a judgment and an elegit. A judgment creditor has by act of parliament a title to take a moiety of the land his debtor had at the time of the judgment or after, and when he is put in possession under an elegit he has it is clear, with all deference to the words we have just quoted, to all intents and purposes an estate, and a legal estate, too, though only a chattel interest.1 This, then, appears to have been the difficulty which presented itself to the Chancellor's mind; here is a party in possession with a legal title--and without notice how can any equity prevail against him? This is plausible, but we confess we think not well grounded. The question however is also raised in a note in Coote's Mortgages.?

A trust estate as distinct from a legal estate in the same lands is recognized and protected in the Court of Chancery; and that Court will not permit the beneficial owner of the trust estate to be damnified by any act or claim of or under or through the trustee except in the case of a person who shall have contracted with the trustee for the trust property specifically, and shall have paid his money without notice of the trust. In illustration of this, we may refer to the familiar case of a widow of a trustee seised in fee claiming dower. At

12 Inst. 396; 2 Saund. 68, c.

law she has a clear title to dower out of the trust property, but chancery steps in for the protection of the cestuique trust and restrains her, not because she had notice of the trust or that her title is not founded in a good and valuable consideration, but because she did not contract for the trust property specifically, and because it would be inequitable to give her dower out of the beneficial ownership of a stranger.1 Here, then, is a case of a legal title giving way to a mere equitable estate. And if lands be conveyed to and to the use of A. and his heirs in trust for B. and his heirs, it is clear that a judgment against A., though good at law to charge the lands, could not avail against them in chancery. And to entitle a cestuique trust to this protection, it matters not, we apprehend, how the trust be constituted, if only he comes in bonâ fide and for a sufficient consideration. Suppose on a purchase by A. the lands are limited to him in fee, and that subsequently for a valuable consideration he agrees in writing that B. shall have the profits during his life, and that afterwards A. marries or contracts a debt for which the creditor sues and gets judgment, we think without doubt that neither the wife nor the judgment creditor could take the land during the life of B. We come now to the case of a man seised in fee agreeing upon a loan of money that the same shall be a charge upon the lands, does not the lender acquire under such an agreement a beneficial interest in the lands, and does not the legal owner become to the extent of the charge a mere trustee? It cannot be contended that chancery looks to the words or mode in which a trust is constituted, it regards only the substance; and if a party can show that he has bargained and paid for a specific property, the acts of the legal owner of that property cannot afterwards affect him, with the single exception we have before noticed. Now, it is a clear doctrine of equity that a deposit of title deeds without any accompanying agreement is of itself evidence of an agreement executed for a mortgage of the estate, and that the party with whom the deeds are deposited may file his bill for a conveyance of the legal estate. It seems, then, impossible to contend, consistently with established rules, that a subsequent judgment creditor of

3

Hinton v. Hinton, 2 Ves. sen. 634. 9 Coote on Mortgages, p. 217.

21 Sanders, U. & T. 351.

the debtor can destroy or supplant so clear an equitable title. For how can the judginent creditor bring himself within the only exception which the Court of Chancery has as yet admitted? He may perhaps allege that when he gave credit he had not notice of the equitable title, but he cannot say, and this is absolutely necessary, that he contracted for the specific portion of his debtor's property. We have as yet discussed only the reason and principle of the question, and we will now show that our conclusion is fortified by excellent authorities. The first case to which we shall refer, is Burgh v. Francis, reported in several books, and in 3 Bacon, Abr., title Mortgage, p. 643, the reason of the decision is fully stated, and it is simply this, that a creditor, though he may obtain a judgment and an elegit, does not originally take hold of the land at all, and therefore should be postponed to a party who before the judgment gets an equitable title to the land. From this and other cases cited by him, the author of the Abridgment states, as a sure and established rule, that "if a man mortgage by a defective conveyance and there be subsequent debts that do not originally affect lands, then the defect of such a conveyance shall be supplied against a subsequent incumbrancer that acquires a legal title afterwards; for since the subsequent incumbrancer did not originally take the lands for his security nor had in his view an intention to affect them, when afterwards the lands are affected and he comes in under the very person that is obliged in conscience to make the security good, he stands in his place and shall be postponed to such defective conveyance." So far as regards the principle of this rule it is plain, it matters not how the security of the mortgagee is defective; within its reason every security is defective which allows a judgment creditor to acquire the legal estate under an elegit. We need not trouble our readers with citing any of the other older cases mentioned in Bacon; we shall now refer to Averall v. Wade,1 decided in Ireland by Lord Chancellor Sugden, which involves the very point. Judgments are entered up against A., seised of Greenacre and Whiteacre, and afterwards A., upon marriage of his son, settles Greenacre, with a covenant that it was free from incumbrances. It was decided that the parties under the settlement, which was defective and did not

the

Rep. temp. Sug. 252.