or a party to the settlement not performing his part of the agreement, create a lien, to the amount of the abstraction or of the deficiency, on any other property which the same party takes under the same or a corresponding settlement (p).

In like manner a covenant, for consideration, to charge or settle particular lands, or all the present estates of the covenantor, will create a lien on that property (q); so a covenant to settle or charge lands of a certain value by a certain time will bind even after purchased lands belonging to the covenantor at that time (r). And the parties entitled to the benefit of the covenant will take vested interests, though they die before the time fixed for the execution of the covenant (s). So a covenant. to settle or charge all lands to be acquired during a certain time (t). And this lien arises though the consideration for the estate purchased be a larger sum than that agreed to be laid out, and notwithstanding the conveyance be taken to the settlor in fee simple without reference being made to the covenant; and the lien will extend to the money raised by a subsequent mortgage of that estate (or to a due proportion of such money, if other estates are comprised in the same mortgage) in the hands of the assignees of the settlor become bankrupt. But the lien will of course be postponed to a subsequent legal mortgagee of the estate (u).

But a general indefinite covenant to settle lands of a certain value by deed or will, will not it seems be enforced as against an alienee by conveyance inter vivos from the covenantor, nor after the covenantor's death against his other creditors (v); though it seems that on principle such a covenant should be enforced against the heir or devisee (w), sed quære.

So a general indefinite engagement by a debtor, though by deed, with his creditors, that if he does not discharge his debts by a certain time he will sell so much of his lands as shall be requisite, does not give the creditors any lien so as to entitle them to come in pari passu with judgment creditors in the administration of assets (x).

A purchaser with notice of a lien of this nature, except in the case above mentioned of a general indefinite covenant, will be bound (y). Where an annuity is charged by will upon a house that is insured, and the devisee of the house being also the executor of the testator, renews the policy, primâ facie such renewal is made in the character of executor, and the annuitant has a lien on the insurance money on the house being burnt (z).

(p) Smith v. Smith, 1 Y. & C., Exch. 338. Priddy v. Rose, 3 Mer. 86. Woodyatt v. Gresley, 8 Sim. 180; et vide Burridge v. Row, 1 Y. & C., N. S. 183, 583; et vide infra, Chap. 18, Liens in General.

(q) Freemoult v. Dedire, 1 P. Wms. 429. Ravenshaw v. Hollier, 7 Sim. 3. (r) Deacon v. Smith, 3 Atk. 323. Roundell v. Breary, 2 Vern. 483. Lyde . Mynn, 4 Sim. 505. Wellesley v. Wellesley, 4 M. & C. 561. Tooke v. Hastings, 2 Vern. 97. Needham v. Smith, 4 Russ. 318.

(s) Nayler v. Wetherell, 4 Sim. 114. (t) Lewis v. Madocks, 17 Ves. 48. Wethered v. Wethered, 2 Sim. 183.

(u) Ex parte Poole; In re Symes, 17 L. J., Bankr. 12, N. S.

(v) Freemoult v. Dedire; Ravenshaw v. Hollier, supra.

(w) Tooke v. Hastings; Wellesley v. Wellesley, supra; though vide Sugd. Vend. 922, 11th edit.

(x) Berrington v. Evans, 3 Y. & Coll.

384.

(y) Ravenshaw v. Hollier, supra. (z) Parry v. Ashley, 3 Sim. 97.

Tenant for life, with waste, under a will, is entitled to a charge on the estate to the value of the timber, if the trustees for sale for payment of debts cut down the timber and apply the produce for such purpose (a). But tenant for life has no lien upon the estate for the monies expended by him in substantial improvements (b).

In the case of Hibbert v. Cooke, however, where the settlor had left a mansion house unfurnished at his death, which the tenant for life under his will completed, the Court directed an inquiry, whether it was for the benefit of all parties interested that the mansion house should be finished, and said that if such should be the case and there had been no personal estate applicable, the expense would be a charge on the real estate. And in the case of Caldecott v. Brown, Sir J. Wigram, Vice Chancellor, said it was not to be laid down as an imperative rule that no case could arise in which the Court would sanction the expenditure of monies by the tenant for life for the benefit of the inheritance, by making such expenditure a charge on the inheritance, and himself suggested such a case (c). In the case of Nairn v. Majoribanks, however (d), the Court refused a reference to inquire whether it would be for the benefit of the parties interested in the property that a new roof to the mansion house should be constructed at the expense of the testator's estate. An exception in favour of the tenant for life seems also to exist in the case of a West India estate in respect of supplies of necessaries provided by him (e). And yet it seems the consignee of the produce of a West India estate has no lien on the estate or its produce for the costs of supplies furnished to the estate (ƒ); unless by special agreement (g); or unless he be a tenant in common of the estate (h). Though a consignee and manager appointed by the Court will not be discharged until the balance due to him is paid, and if necessary the Court will raise it out of the corpus of the estate; but pending the consigneeship no order will be made for the payment of the balance, then found due to him, out of the corpus of the estate (i); and compensation money for slaves in Court will be treated as part of the corpus of the estate quoad hoc, though the consignee will be entitled to be allowed out of it payments in respect of a rent charge on the estate (j).

And under a late act, any tenant for life and other owner mentioned in the act may by petition to the Chancellor or Master of the Rolls, and on reference thereon to one of the Masters, obtain authority to make permanent improvements to the estate by draining or by warping, irrigation or embanking, and charge the expenses upon the estate, such charge to be paid off by annual instalments (k).

The heir or devisee has a lien on the estate descended or devised, by way of retainer, for a debt due to him or to a trustee for him, in priority

(a) Davies v. Wescomb, 2 Sim. 425. (b) Caldecott v. Brown, 2 Hare, 144. Nain v. Majoribanks, 3 Russ. 582; vide Hibbert v. Cooke, 1 Sim. & Stu. 552. (c) 2 Hare, 145, 146.

(d) 3 Russ. 582.

(e) Scott v. Nesbitt, 14 Ves. 442. (f) Scott v. Nesbitt, supra.

(g) Simond v. Hibbert, 1 R. & M. 719.

(h) Scott v. Nesbitt, supra.

(i) Farquharson v. Balfour, 8 Sim. 210; et vide Shaw v. Simpson, 1 Y. & C., N. R. 732.

(j) Shaw v. Simpson, supra.

(k) 8 & 9 Vict. c. 56; et vide 9 & 10 Vict. c. 101, and 10 & 11 Vict. c. 11, and 113, et infra, Bk. 6. Miscellaneous Chapter.

to the other debts of the same nature due from the ancestor or devisor, in like manner as the executor has as regards the personalty (1).

When the monies arising from the purchase of lands under a railway act are paid into Court, to be applied in discharge of the land tax or of incumbrances upon the lands or other lands settled to the like uses, the tenant for life who has redeemed the land tax before the passing of the act may reimburse himself out of the proceeds of the purchased lands (m).

Where an estate in settlement has been sold under the powers in the deed, and the tenant for life having received the purchase money has invested it together with money of his own in other lands, and taken the conveyance to himself in fee, the Courts of equity will create a lien on the estate so purchased to the amount of the trust money, although thirty years may have elapsed, during which the tenant for life has held the property as his own (n). So where tenant for life sells part of the estate under the authority of an act of Parliament, which directs him to lay out the purchase money in other lands to be settled to the like uses, and he purchase lands to nearly the amount, and takes the conveyance in fee, the Court will presume the purchase to be made in performance of his obligation (o). So, where the founders and managers of a charity aliened some of the lands, and with the produce of the sale and monies of their own purchased an estate, the charity were allowed to claim such a proportion of that estate as the sum raised from the charity lands bore to the whole purchase money (p). And where settlement money is sold out and invested in the purchase of land under the powers of the deed, the tenant for life (the father of the family) making up the required sum out of his own monies without any notice being taken of the fact, and the estate is conveyed to the trustees of the settlement, a strong presumption arises on his death that he intended the purchase for the benefit of all parties entitled under the settlement, and his personal representatives consequently have primâ facie no lien (q).

In a case where a man covenanted to grant a rent charge out of collieries, the deed of grant to contain a covenant to make good any deficiency, and by his will gave 15,000l. to trustees on trust to make good the deficiency of the collieries for payment of the annuity, and the surplus to other persons, and subject to the annuity he settled the collieries; it was held that the persons interested in the surplus of the 15,000l. could not claim that the surplus profits of the collieries in prosperous years should make good what had been paid out of the 15,000l. in other years.

Where a testator directs a sum to be raised out of an estate, settled by his will, at a certain period after his death, with interest from his death, the tenant for life is bound to keep down all the intermediate interest, and if from his default it becomes necessary to raise more than

the principal sum charged, the remainderman will have a lien on his life estate for the surplus (s).

It is a general principle that a lien cannot be acquired merely by the outlay of money upon the property of another without a contract express or implied (t). Though we have already noticed an exception in the case of the tenant for life of a West India estate, who has, it seems, a lien upon the inheritance for necessaries furnished by him for the estate (u). And in ordinary cases, any claim which might otherwise exist to a lien for money bonâ fide expended on the land of another person, is excluded by notice of his right being given by the real owner, even though the latter knowingly claim a larger interest than he is actually entitled to, as where he claims the entirety knowing that he is only entitled to an undivided share, unless the false claim amount to a misrepresentation, and be made with the intention of misleading the other party, who was with good reason misled thereby accordingly (v).

(s) Waring v. Coventry, 2 M. & K.

406.

(1) Ridgway v. Roberts, 4 Hare, 110; et vide Caldicott v. Brown, 2 Hare, 144.

(u) Scott v. Nesbitt, 14 Ves. 438, supra.

(v) Clare Hall v. Harding, 6 Hare, 273.

CHAPTER XVI.

OF MORTGAGES OF CHATTELS PERSONAL.

On the assignment of a chattel personal, whether the interest be present or future, vested or contingent, notice should be forthwith given to the trustees in whom it is vested, it being now decided that if a party takes an assignment of a chattel personal, and does not give notice of it to the trustees, a subsequent assignee giving such notice will gain preference (a). And if the assignor is a legatee of the original cestui que trust, notice must also be given to the executor, if the latter has not assented to the bequest (b). So notice given by a second incumbrancer on a fund in Court to the Accountant General and Registrars' Offices will give him priority (c). And where a trustee for sale of estates has sold part, and paid the purchase money into Court, notice of an incumbrance on a share of one of the beneficial owners, is sufficient, if given to the trustees without a stop order (d). So a second incumbrancer on stock gains priority by lodging a distringas on the bank, if neither party has given notice to the trustees of the fund (e). Notice to one of several trustees is sufficient so long as that trustee remains in the trust (f), but no longer (g); and it is not material in what character the trustee acquired his knowledge, if he had actual knowledge at the time the second incumbrance was created (h). Where, however, there is no notice, in the trustee, of a prior incumbrance, omission on the part of the puisne incumbrancer to inquire is immaterial, and will not prevent his gaining priority by giving notice of his own incumbrance (i). If a policy of life assurance is assigned, notice of such assignment must be given to the office in which the assurance is effected, to take it out of the reach of the bankrupt laws (j). And that, whatever the

(a) Burn v. Carvallo, 4 Myl. & Cr. 690. Martin v. Sedgwick, 9 Beav. 333. Foster v. Blackstone, 3 Cl. & Fin. 456; 1 M. & K. 297; 9 Bligh, N. S. 332. Hulton v. Sandys, 1 Younge, 602. Dearle v. Hall; Loveridge v. Cooper, 3 Russ. 1. Wright v. Lord Dorchester, 1 Russ. 9, note, and Cumming v. Prescott, 2 Y. & Coll. 488.

(by Holt v. Dewell, 4 Hare, 446.
(c) Greening v. Beckford, 5 Sim. 195.
(d) Matthews v. Gabb, 15 Sim. 51.
(e) Etty v. Bridges, 2 Y. & C., N. S.

486.

(f) Meux v. Bell, 1 Hare, 73. Smith v. Smith, 2 C. & M. 231.

35.

(g) Timson v. Ramsbotham, 2 Keen,

(h) Meux v. Bell, supra. Tibbits v. George, 5 Ad. & Ell. 107; et vide Gale v. Lewis, 9 Q. B. Rep. 730, 16 L. J., Q. B. 119, N. S.

(i) Meux v. Bell, 1 Hare, 86. Foster v. Blackstone, 1 M. & K. 297; 9 Bligh, N. S. 376.

() Williams v. Thorp, 2 Sim. 257.