term of one thousand years, in trust, nevertheless, to attend the inheritance of the same hereditaments, in order to protect it from all mesne incumbrances. (Covenant by the mortgagee that he had not incumbered.)] IN WITNESS, &c.

The doctrine of attendant terms.

As to Attendant Terms.

[As the doctrine of attendant terms was of great importance in conveyancing, and the possession of an existing term frequently saved the inheritance when a legal and paramount title existed, the getting in these long terms was formerly a sine qua non with purchasers. The author had a note on the subject of terms, prepared with that care which the subject demanded, but as the alterations we shall presently notice render the learning which had accumulated on the subject obsolete, we have abridged the author's note, so as to give such an outline of the subject which may be useful to the reader.]

The doctrine of terms attendant on the inheritance has excited particular attention, and been gone into with a minuteness proportioned to its importance. The writer will endeavour in a brief survey of the learning to display its true foundation. It should be premised, and always borne in mind, that the attendancy of a term on the inheritance is a result purely equitable; for it is the effect of a merger of the equitable interest of the term with the inheritance, in consequence of their coalescing in the same person. (Capel v. Girdler, 9 Ves. 509.) But when there is an intervening beneficial interest between the term and the inheritance, the former cannot become attendant by implication of law, but may nevertheless by express declaration.

If we follow up the above principle, another consequence necessarily arrived at is, that the inheritance on which the term is attendant descends to the heir, and is real assets. (2 Vern. 52, 213.) For the trust of the term being consolidated with and drowned in the freehold, it is therefore not an equitable chattel which devolves on the heir, but the freehold itself, and a present interest. A conclusion which equally holds whether

The utility of terms.

the term be attendant by express declaration or by implication. This observation may show the inaccuracy of speaking of the term as real assets. If, however, the purchaser take an assignment of the term in his own name, and have the inheritance conveyed to a trustee, the term is personal assets; for it is so liable at law, and equity cannot prevent its liability. (1 Vern. 188. Hard. 48.)

Let us proceed, secondly, to consider the utility of the doctrine of attendant terms, and the principles on which the practice of the profession with regard to them is founded. The term in the trustee, as already remarked, is the legal estate. This alone, therefore, is recognised by the courts of law. Hence the expression, that every term is at law a term in gross. (1 T. R. 765.) Now, it is a maxim in courts of equity, that when there are various claimants with equal equity, he who has the legal estate shall be preferred. (1 Bro. P. C. 66. Fran. Max. 14. Fon. Eq. 321.) For when an equitable owner has the legal estate his title is complete, and as he no longer requires the assistance of the courts of equity, and they consequently remain passive, it is evident the other claimants must be either excluded or postponed. But if the legal estate be acquired without such an equality of equity, then those courts consider themselves no longer bound to continue neuter; and, therefore, they deprive the person of the advantages resulting from that step, by making the person obtaining it a trustee for those who have an antecedent superior claim. This doctrine is capable of an easy illustration. Suppose the owner of the fee to have sold or mortgaged to various persons, none of whom had any knowledge at the time of advancing their respective loans, or the payment of their purchase moneys, of the prior sales or incumbrances. In this case their equities are equal; but from the courts of equity following the maxim of law, qui prior est tempore potior est jure, the several claimants are paid according to their priority. (1 Bro. P. C. 66.) But let us suppose further, that at the time the first sale or mortgage was made, a term was outstanding. That circumstance, by taking from the first purchaser or mortgagee his legal estate to the extent of the term, reduces him to a level with the subsequent incumbrancers, and leaves him only the advantage of priority; then if any of the subsequent purchasers or mortgagees procure an assignment

of the term to a trustee for himself, he immediately acquires precedency. But if such purchaser or mortgagee had notice, at or before the completion of his purchase, &c. of any prior sales or incumbrances, his equity is no longer equal to that of the antecedent claimants, and he is not allowed therefore to shield himself under the legal estate. (2 Vern. 29–81. 2 Atk.52347.)

Hence, when a person is a bonâ fide purchaser, and is on good grounds assured that no notice of any prior incumbrances can be proved against him, and he can substantiate the title of the term, then unless it is of recent creation, it is even advisable to waive all search for incumbrances, and rely on the protection of the term; and when we consider the infinity of incumbrances to which realty is liable, the immense advantage of taking an assignment of outstanding terms is instantly apparent. Crown debts by specialty, though not by simple contract (1 Wight. 34), are indeed the only species of incumbrances which follow the equitable as well as legal estate into the possession of a purchaser under all circumstances, and against which therefore a term in his trustee is unavailing. (King v. Smith, Sug. V. & P.) As to the dower of the vendor's widow, it is now held that an outstanding term, created bona fide previously to the accruer of the right of dower, and actually assigned to a trustee for the purchaser, is a bar to it in equity, notwithstanding notice. (Maundrell v. Maundrell, 10 Ves. 246, 259.) Yet, by reason of the continuing liability of the lands at law to the claim of dower, it was usual to require a fine, till the decision, Mole v. Smith, (1 Jac. 490,) which established, not merely that the wife's right to dower is barred so completely that the purchaser cannot require a fine, but that if she herself be the termor, she is compellable to assign. In the case cited, the term vested in her as administratrix. But although in respect to other incumbrances a term may be sometimes depended on, it is rarely safe to omit the investigations that would otherwise have been made; for constructive notice is of course equally binding on the purchaser, with actual notice; and as the former is of a vague uncertain nature, a purchaser can seldom be sure that it cannot be proved upon him. To give even an outline of the doctrine of NOTICE would carry the writer far beyond the proposed limits of this note, but as the efficiency of

Modern

as to atten

the assigned term depends on the non-existence of it, when the purchase is for a valuable consideration, he will briefly observe that flying reports from strangers, (Goulds. 147,) a private act of parliament, (2 Ves. 480,) decrees of the court of equity, (Toth. 45,) [unless registered, 1 & 2 Vict. c. 110, 2 & 3 Vict. c. 11,] the docketing of judgments, (2 Cha. Ca. 47,) the registration of deeds, (without search by purchaser,) (1 Sch. & L. 103,) an act or commission of bankruptcy, (2 Vern. 599, 7 East, 161,) the mere knowledge of a term being assigned to attend the inheritance, (Sug. V. & P.,) the witnessing of a deed, (1 P. Wms. 393,) do not operate as notice. But public Acts of parliament, lis pendens, [registered under 2 & 3 Vict. c. 11,] (Toth. 45,) reference in an instrument which is essential to the making out of the title of the purchaser to another fact or instrument, (1 Cha. Ca. 287,) or sufficient information to put him on his inquiry, (1 Atk. 489,) as knowledge of the legal estate, (2 Free. 137,) or the possession of the title deeds, (13 Ves. 114,) or of the land itself being in a third person, (1 Mer. 282,) any of these things are notice.

[In 1845 an Act was passed, having for its object the destruclegislation tion of future terms as soon as they become simply attendant on dant terms. the inheritance, but with a preservation of the benefit which 8 & 9 Vict. before the Act could be derived from all then existing terms, as c. 112. were by express declaration attendant upon the inheritance. Whether the Act has accomplished its object, and whether terms may not still be prudently and beneficially kept on foot for the protection of the purchaser's inheritance, or supposed inheritance, remain questions which the courts must determine. At present there is a decision which goes far to restore satisfied terms to much of their ancient vigour. We will state the Act, and then the case decided on it.

[By 8 & 9 Vict. c. 112, "An Act to render the assignment of unsatisfied Terms unnecessary," attendant satisfied terms are ranged in two classes:

1st. Attendant by express declaration on 31st December, 1845. 2nd. All other satisfied terms present or future.

[As to the second class, which includes all satisfied terms attendant by construction of law, and also those expressly atten

dant after 1845, they are, either on 31st December, 1845, or on their becoming satisfied, absolutely to cease and determine, as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid. In no case, therefore, can the real owner of the inheritance require the assignment of a satisfied term. If such a term existed before 1846, he has by the Act all the benefit which such an assignment could give him, and, if such term be satisfied and attendant after 1845, it has ceased and determined. But it must be observed that the Act does not abolish all satisfied terms, but only such as are by express declaration or construction of law attendant upon the inheritance. If, therefore, a term is not in either predicament, a party getting it in without notice may use it against the fee. Suppose C. is a party, believing himself the owner of the inheritance, but which, from prior latent mortgages, he is not, he takes an assignment of a satisfied term, not to attend the inheritance, but in trust for his, C.'s, own express benefit. When the prior incumbrancers assert their rights, is this term to be for their benefit, or for C.? This was in substance the case of Doe d. Clay v. Jones (13 Jur. 824), and the court of Queen's Bench decided that this term "was not attendant upon the inheritance by express declaration, there being no such declaration, neither was it by construction of law, for the trust is expressly declared in favour of C., who has not the inheritance, and, although he was supposed to be entitled thereto, when the deed was executed, that supposition is now proved to have been founded on a mistake. That mistaken supposition has no effect upon the express words of the instrument." The result was that C., through the trustee of the term, recovered the premises in ejectment from the owner of the legal fee. It seemed to have been considered by the court that this term would have been a satisfied term within the Act, if it had been vested in a trustee for the legal owner, but no decision on that point was necessary or given. Assuming, however, that it would have been so decided, and, therefore, that there is no utility for or possibility of keeping on foot a satisfied term by an express trust for the person having the legal fee, yet who will venture to consider and act, as if it were absolutely certain that the party has the legal fee? and will it not, therefore, be expedient, nay, absolutely neces

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