on which the law of notice itself is founded. It has, however, been justly remarked (y), that in this case the statute must have operation at law, so as to vest the estate in the subsequent purchaser, but subject to the relief which will be granted in equity.

Where it appears that an incumbrancer searched the register from a certain date only, he will not be considered to have had notice of any of the contents of the registry prior to that date, though otherwise where a general search is admitted or proved (z). And notice, before the registration of a subsequent incumbrance would seem to be immaterial, provided the party so registering had no notice at the time he advanced his money and took his conveyance (a).

The memorial of registry, in order to be effective, must be attested by one of the witnesses to the deed, and a second witness, and a re-execution of the deed before fresh witnesses will not avail (b).

An act of bankruptcy is not notice (c). But by the 6 Geo. 4, c. 16 (d), it was enacted, that the issuing of a commission should be deemed notice of a prior act of bankruptcy, if the adjudication of such bankruptcy had been notified in the London Gazette, and the person to be affected by the notice might reasonably be presumed to have seen the same. By the 1 & 2 Wm. 4, c. 56, s. 16, the laws and statutes then in force relating to commissions were extended to fiats issued under the latter act. There is no similar provision in the New Bankrupt Act; but perhaps the same law will be applied to the proceedings by petition under that act (e).

The docketing of judgments under the old law is not of itself notice (f); on the other hand, if a party have notice of a judgment not duly docketed, he will in equity be bound by it (g).

It would seem to follow, that the registration of a judgment under the 1 & 2 Vict. c. 110, is in like manner not notice; although on the other hand, as we have already seen, an unregistered judgment does not have any effect under that act as against purchasers, mortgagees, or creditors, notwithstanding notice, on their part, of the judgment, and therefore under that law a subsequent judgment gains priority by registration notwithstanding notice of a prior unregistered judgment (h).

Where a judgment entered up for a certain sum is made a security for a larger sum, a purchaser of lands from the judgment debtor, with notice of the agreement, cannot obtain from the Court a rule that satisfaction be entered up on the judgment on payment of the first mentioned sum and interest (i).

The Court rolls of a manor do not give constructive notice (k).

Sugd. Vend. 984, 11th edit. (z) Hodgson v. Dean, 2 S. & S. 222. (a) Vide Essex v. Baugh, 1 Y. & C., N. R. 622. (b) Ibid.

Collett v. De Gols, Fort. 70. Wilkes v. Bodington, 2 Vern. 599.

(d) Sect. 83. As to what amounts to notice of an act of bankruptcy within the 2 & 3 Vict. c. 29, vide Pike v. Stevens, 17 L. J., Q. B. 282, N. S. Green v. Laurie, 1 Exch. Rep. 335; 17 L. J.,

A decree is not constructive notice after the determination of the suit, to persons not parties to it (k). A purchaser pendente lite, although for a valuable consideration, and without notice, was, prior to the 2 Vict. c. 11, bound by the decree (1), if there had been a close and continued prosecution of the suit (m). He was also bound by an interlocutory decree, or decree to account (n). But since that statute, lis pendens does not affect a purchaser or mortgagee without express notice until a memorandum containing the particulars mentioned in the act is left to be registered, with the senior Master of the Common Pleas, which memorandum is to be registered every five years, in like manner as judgments are required to be by the 1 & 2 Vict. c. 110. And even under the former law a specific claim to the particular subject must have been made by the lis pendens, and it must not have been merely a suit to carry into effect the general trusts of a creditor deed (0), nor a mere general administration suit (p).

By force of the statute of the 3 & 4 Vict. c. 82, notice of an unregistered decree, as well as in the case of an unregistered judgment, will not, as against purchasers, mortgagees, or creditors, give such decree any effect under the 1 & 2 Vict. c. 110.

In a case heard before Lord Chancellor Cowper (q), it was decided, that if a first mortgagee be a witness to the second mortgage deed, it is sufficient notice to bind him, although it does not appear that he actually knew the contents; on the ground, that since it did not appear but that he might have known them, it would be presumed that every witness who could write or read was acquainted with the substance of the deed or instrument which he, having attested, undertook to support by his evidence. To this the reporter adds a quære, whether the bare attesting a subsequent incumbrance without other circumstances of presumptive notice, will postpone a prior incumbrance; since at that rate, he adds, a prior mortgagee or incumbrancer may, without any fraud or ill intention on his part, be liable to be cheated out of his security. And so I find it said by Lord King in our author's report of an anonymous case in Mich. 1732. The learned editor also, in a note, admits that none of the cases seem to come up to this point: and Lord Thurlow, in Becket v. Cordley (r), intimated, that he should have decided differently; for a witness, in practice, is not privy to the contents of the deed. The better opinion in the present day appears to be, that the bare attestation of a deed will not, without other circumstances, be sufficient to bind a party with notice of its contents (s). It is material to bear in mind, that a mortgagee obtaining a conveyance of the legal estate, or other security, subsequently to the date of his mortgage, will not be affected by an intermediate incum

brance, if he had not notice at the time of the completion of his mortgage, notwithstanding he may have notice in the intermediate time (u); unless the party holding the legal estate be affected with an express trust, and then he cannot get in the legal estate after such notice (v). On the other hand, the notice will be binding on him at any time prior to the completion of his mortgage (w), although, as it seems, he has advanced part or the whole of the money (x), or given a bond, &c. for the payment of it, and at law he would have no remedy in an action against him on the bond, but he would have relief in equity (y).

For the mode of pleading a purchase for a valuable consideration, without notice as a bar to discovery or relief, the reader is referred to other works which treat on this subject (z).

Notice, in order to affect the Bank of England, must be distinct notice of an existing claim upon the stock, since the Bank stands, not in the position of a trustee, but of a depositary (a).

If an estate is devised subject to debts and legacies, and a mortgagee has notice, from the nature of the transaction, that the money advanced by him is not to be applied for the purposes of the trust, he will take subject to the charge (b). But notice that the debts have been satisfied will not render him liable, if any part of the trust remains to be performed; as the question of the purchaser's exemption depends upon the state of things at the testator's death, and is not altered by subsequent events (c).

BOOK THE FIFTH.

CHAPTER I.

OF TACKING, AND PRIORITY OF INCUMBRANCES.

THE doctrine of tacking is founded on an application of the equitable maxims, that he who seeks equity, shall do equity to the person from whom he requires it (a),—and where equities are equal, the law shall prevail (b).

It has been already remarked, that equity regards the debt as the principal-the land as the pledge; and although the land is absolutely forfeited at law, compels the mortgagee to permit his debtor to redeem; but, in so doing, it adheres to the first mentioned rule, viz., he who seeks equity, shall do equity to him from whom he requires it; and, therefore, the Court will make terms with the debtor before it will permit him to redeem, in order that full justice may be done to the creditor.

It is equity, that the debtor shall, before redemption, pay, not merely the principal and interest of the debt, but all costs necessarily incurred by the creditor in maintaining the title to the estate (c), renewing leases (d), making necessary repairs (e), or permanent improvements (ƒ), or in establishing his security (g). And the Court will award interest on the sums from the time of their being advanced (h). The mortgagor, on redemption, must also pay the costs of all persons claiming under the mortgagee, although the mortgage be carried by the mortgagee into settlement (i). And, upon this principle, he must pay the costs of the proceedings before the Master, and of the petition, to establish the devisee or infant heir of the mortgagee a trustee within the 11 Geo. 4 & 1 Wm. 4, c. 60 (j), and the costs of an order for the delivery of the title deeds out of the Master's office, where they have been deposited in a regular suit for the administration of the mortgagee's estate (k). So, the additional costs caused by an assignment by a second mortgagee of his mortgage, pending a foreclosure suit by the first mortgagee, will (a) Francis's Maxims, 1.

et

(b) Ibid. 14.

(c) Godfrey v. Watson, 3 Atk. 518;

supra, p. 344.

(d) Lucam v. Mertins, 1 Wils. 34. Manlove v. Ball, 2 Vern. 84.

(e) Hardy v. Reeves, 4 Ves. jun. 480. (f) Vide the Decree in Webb v. Rorke, supra, and Godfrey v. Watson,

supra.

281, N. S.

(h) Godfrey v. Watson, supra.

(i) Wetherell v. Collins, 3 Madd. 255. Bartle v. Wilkin, 8 Sim. 238. Burden v. Oldaker, 1 Coll. 105.

(j) Ex parte Ommaney, 10 Sim. 298. King v. Smith, 6 Hare, 473; et vide supra, p. 360.

(k) Burden v. Oldaker, 1 Coll. 105; et vide Reed v. Freer, infra.

fall on the estate; though otherwise as to the extra costs in such suit occasioned by the assignment by the first mortgagee after institution of the suit, such assignment being of such a nature as to make the suit wholly inefficient (1); and the mortgagee will be allowed the costs of taking out administration to the mortgagor, as principal creditor (m), or to an incumbrancer under the will of the mortgagor, as a necessary party to foreclosure (n), and the costs of an action against a surety (o). But, to entitle the mortgagee to his costs of the proceedings in the Ecclesiastical Courts for obtaining such administration, he must make out his case for such costs on the record, if the proceedings referred to took place before the bill was filed (p); and the mortgagee cannot recover, as against the devisees of the mortgaged estate, the expenses of an action on a bond against the mortgagor's executors (q). So if the costs incurred are altogether irrelevant to the mortgage, they will not be allowed, as in the instance of the costs attending a deed executed by the mortgagee to a cestui que trust who lends him the money (r), and as in a case (s) in which a devisee of a mortgagee filed his bill against the heir and executor of the mortgagor for foreclosure, and also against the heir at law of the mortgagee for establishing the will, the Master of the Rolls ordered, that the plaintiff should pay the heir of the mortgagee his costs, and that he should not be entitled to have them from the estate (t); nor will the mortgagee be allowed the costs of his petition for leave to bid at the sale of the mortgaged estate (u). A distinction will, of course, be drawn between the before mentioned case, in which the concurrence of the heir at law of the mortgagee was necessary only to the establishment of the devisee's title, and the case of costs arising from the nature of the assurance required in the reconveyance of the mortgaged estate; as, for example, if prior to the 3 & 4 Wm. 4, c. 74, a fine were necessary to divest the estate from a feme covert, or if, as above mentioned, an order of the Court of Chancery be required to procure a conveyance from an infant heir of the mortgagee (v), or if the mortgagor become insolvent and his assignees are made parties to the bill and disclaim all interest (w), in which cases the expenses must be borne by the mortgagor or his assignees, unless in the last mentioned case the assignees are unnecessarily made parties to the bill of foreclosure (x). But the costs of the committee of a lunatic mortgagee requisite to enable him to convey, including the order of reference under the statute, must be paid out of the lunatic's estate (y). If a mortgagee be guilty of gross misconduct,

(1) Coles v. Forrest, 10 Beav. 552; et vide infra, as to costs when assignment is after decree to account, p. 388. (m) Ramsden v. Langley, 2 Vern. 536. (n) Hunt v. Fownes, 9 Ves. jun. 70. (0) Ellison v. Wright, 3 Russ. 458. (p) Ward v. Barton, 11 Sim. 534. (q) Lewis v. John, 9 Sim. 366. (r) Martin Demandant, 5 Bingh. 160. (s) Skip v. Wyatt, 1 Cox, 353. (t) Ex parte Wilson v. Metcalfe, 3 Madd. 45.

(u) Ex parte Williams, 1 Dea. & Chit.

489.

(v) Ex parte Cant, 10 Ves. 554; et

vide Ex parte Ommaney, 10 Sim. 298, supra.

(w) Collins v. Shirley, 1 Russ. & Myl. 638. Appleby v. Duke, 1 Hare, 303; 1 Phill. 272. Cash v. Belcher, 1 Hare, 310, overruling Woodward v. Haddon, 4 Sim. 608. Wearing v. Count, 6 Sim. 439. Peake v. Gibbon, 2 Russ. & M. 354. As to the costs of a party dis claiming, vide supra, Bk. 3, Ch. 4, and p. 388, infra.

(x) Thompson v. Kendall, 9 Sim. 397. (y) Ex parte Richards, 1 Jac. & Walk. 264. In re Townsend, 2 Phill. 348. Supra, p. 360.