to obtain a conveyance of the legal estate, but do not avail himself of it, another may get the legal estate if he can. The second incumbrancer had notice that the legal estate was held in trust for the mortgagee, and if the latter had been the purchaser of the estate it would have been conclusive, but as mortgagee the prior equity only extended to the money due on that mortgage. The learned Judge observed, that Lord Eldon did not decide the point in ex parte Knott, but only threw it out as a matter for consideration; and he held that both parties had equal equities, and neither of them had the legal estate, for the covenant to stand possessed did not make any difference. 14. This is an important case, but the reasoning rather applies to a case not before the Court, viz. where the second equitable mortgagee afterwards obtains the legal estate, than to the case itself. But although the mortgagees took according to their priorities in time, and the junction of the trustee did not avail the first mortgagee, for his mortgage would equally have had priority without the trustee's concurrence, yet if the first mortgagee had not obtained a declaration from him, and the second had, the latter, if without notice, would have been preferred to the former. This seems to admit of no doubt, although it is not clear that the learned Judge who decided the case of Frere v. Moore would have so decided, for his opinion rather seems to have been, that the equity was not a higher one, although the trustee concurred, and that to give priority out of time, the possession of the legal estate was necessary. This, however, was contrary to the authorities. 15. The true rule was laid down by Lord Talbot, that a term *assigned in trust to attend the inheritance will in equity follow all the estates created thereout, and all the incumbrances subsisting upon such inheritance, and is so connected with it, that equity will not suffer it to be severed to the detriment of a bona fide purchaser, who shall have the benefit of all interests which the mortgagor had at the time the mortgage was made, unless against an intermediate purchaser without notice (u). 16. So a purchase subject to a mortgage, where the mortgagee took a further mortgage which the purchaser covenanted to pay, and the mortgagee covenanted, on payment of the money, to assign to him or as he should direct, was held to give the purchaser more than a bare equity, for the whole interest was united in him, and they who had the legal estate covenanted to assign, and were but (u) 3 P. Wms. 330; see Shine v. Gough, 1 Ball & Beat. 436. his trustees after the payment of the mortgage-money, so that the purchaser prevailed over an earlier incumbrancer who had only an equity of which the purchaser had not notice, for he purchased the legal estate together with the equity (x) (I). 17. If the purchaser has not the first and best right to call for the legal estate, though he obtain a transfer of it, he cannot avail himself of it, and must rank according to his priority. Thus, where a legal term was outstanding attendant upon the inheritance, and a purchaser bought the fee with notice of a prior settlement of a jointure-rentcharge, but without notice of a mortgage made to the jointress after her husband's death, and he got in the legal term, it was held that he took subject to both the jointure of which he had and the mortgage of which he had not notice; for as he had notice of the jointure the jointress had the better and preferable right, even as against the new trustee of the term, to call for the legal estate to protect her jointure; she might upon equitable grounds demand it to be assigned to a new trustee for her, and when that was done, she might protect her mortgage by it. This brings the whole to be in equity, and subjects the case to the rule qui prior est tempore potior est jure. This was the point decided in Willoughby v. Willoughby by Lord Hardwicke (y)(1). 18. The protection in these cases is not claimed by the purchaser as derived from the person from whom he obtains the legal estate, *but arises from his personal situation, and attaches originally to himself the moment he obtains the legal interest in the estate (z). It is clear therefore that the purchaser without notice, obtaining a legal estate from a third person, may protect himself by it, although that person was a trustee, and had notice of the other claims; but he cannot protect himself where the party was a trustee upon express trusts (a). (x) Blake v. Sir Edward Hungerford, Prec. Cha. 158. (y) 1 Term Rep. 763. (2) 1 Ed. 530, per Lord Keeper. 123. (I) This point is clear upon the report, which is incorrect in some respects. It is not explained why the judgment creditor was postponed to the legatees, nor what the declaration of trust was in which the judgment creditor joined. (1) See Boone v. Chiles, 11 Peters, 177. [*786] 5. And although a nominal reversion be 10. 8 & 9 Vict. c. 112. left outstanding, if no charge. BEFORE we quit this subject, we must inquire in what cases a term of years will attend the inheritance, without an express declaration of trust for that purpose (a); that is, as the late act expresses it, by construction of law. 1. First, then, it is a general rule, that whenever a term would merge in the inheritance if united, it shall attend, if in a different person, without an express declaration, by implication of law founded on the statute of frauds (b). And the custom of London shall not prevail over this operation of law (c). 2. Therefore, where a person purchases the inheritance in his own name, and takes an assignment of a term in the name of a trustee (d); or takes a conveyance of the fee in the name of a *trustee, and an assignment of a term in his own name (e); in both these cases the term attends the inheritance, unless there be an express declaration to the contrary, whether the term be purchased or obtained before or after the purchase of the fee (1). And in gen (a) See an admirable opinion of Mr. Fearne's respecting terms of years, 2 Coll. Jur. 297. Mr. Powell in the last edition of his Treatise on Mortgages inserted this opinion without acknowledgment. See 1 Mort. 483-489. (b) See 1 Bro. C. C. 70. (c) Greene v. Lambert, 1 Vern. 2, cited; Dowse v. Derivall, ibid. 104; 2 Vern. 57; Reg. Lib. A. 1683, fol. 283. It is said in the decree, that the lease and conveyance were in law one conveyance; Rich v. Rich, 2 Cha. Ca. 160. (d) Tiffin e. Tiffin, 1 Vern. 1; 2 Cha. Ca. 49, 55; Whitchurch v. Whitchurch, 2 P. Wms. 236; 9 Mod. 124; Gilb. Eq. Rep. 158; Goodright v. Sales, 2 Wils. 829. (e) North v. Langton, 2 Cha. Ca. 156; Dowse v. Derivall, 1 Vern. 104; Attorney-general v. Sands, 3 Cha. Rep. 19. (1) See Den v. Van Ness, 5 Halsted, 102. eral there is no difference between an assignment of a term to a trustee, in trust to attend the inheritance, and an assignment to a trustee, in trust for the purchaser, his executors, administrators and assigns (f). 3. So the same rule prevails where a man possessed of a term for years contracts for the inheritance, for the vendor stands seised in trust for the purchaser from the time of the contract (g). 4. And where, by reason of an intermediate term outstanding, a term cannot merge, although vested in the purchaser, together with the fee, yet if the purchaser be entitled to such outstanding term, even the term vested in the purchaser, and which cannot merge, shall attend the inheritance, without any express declaration for that purpose (h). 5. And even if the purchaser cannot obtain an assignment of the whole term, yet, if a nominal reversion only, as a reversion of a few days, be left outstanding, so much of the term as is assigned to a trustee for the purchaser will be deemed attendant on the inheritance, without any express declaration for that purpose. But where the term is subject to rents or charges in favor of other persons, whereby the purchaser has not substantially the whole beneficial interest in the estate, there an express declaration is necessary to make the term attendant. The mere intent of the purchaser to purchase the whole interest, and that the term should attend the inheritance, will not vary the case. 6. The two last propositions appear to be established by the case of Scot v. Fenhoullet (i). From the imperfect statement of the facts in this case, it is difficult to understand the ground of Lord Thurlow's decision; and it has been generally thought that the decree turned on the reversion, which the purchaser could not get in (k). The facts, as stated in Lord Thurlow's judgment, on *the re-hearing, reported in Brown, are shortly these: Mrs. Rudger was seised in fee of the estate, subject to two terms of years, upon which it should seem small rents were reserved; which terms were vested in trustees in trust for Mrs. Rudger for life, and for raising (f) Best v. Stamford, Prec. Cha. 252; Tiffin v. Tiffin, 1 Vern. 1; Holt v. Holt, 1 P. Wms. 374, cited; Pitt v. Cholmondley, Chancery, 9 Nov. 1751, MS. (9) Capel v. Girdler, Rolls, 16th March, 1804, MS.; 9 Ves. jun. 509; Cook v. Cook, 2 Atk. 67. Vide supra, ch. 4. (h) Whitchurch . Whitchurch, 2 P. Wms. 236; 9 Mod. 124; Gilb. Eq. (i) 1 Bro. C. C. 6, 9; see Scott v. Knox, 4 Ir. Eq. Rep. 397. (k) See Capel v. Girdler, MS. and 9 Ves. jun. 509; 1 Cruise's Dig. 513, s. 17, and the marginal abstract of the case in Brown. certain annual and gross sums of money. Sir Andrew Chadwick purchased of Mrs. Ruger the fee-simple estate, and so much of the terms as related to it; and the trustees executed their power by granting a derivative lease to trustees for Sir Andrew, with a nominal reversion (eleven days) to themselves. Lord Thurlow admitted that Sir Andrew meant to purchase the whole interest, and that his intent was, that the terms should attend the inheritance. If they did attend the inheritance in this case, it must, he said, be by implication of law, as there was no express declaration; and, after showing that the case of Whitchurch v. Whitchurch (1) did not apply to the case before him, because that there no interest was outstanding, except in form, he added, "Sir Andrew Chadwick might have given these terms to a stranger, and if the inheritance descended, the heir at law might demand the rents reserved by the leases. It is said to be extremely plain, that Sir Andrew Chadwick meant to consolidate the interests: this is begging the question. It is true he meant to take the largest interest he could, but by no means apparent that he meant to consolidate the interests. I lay no stress on the days of the reversion, for it was meant only as a nominal reversion; they did not mean to reserve a substantial interest. It would be necessary there should be an express trust to make this attendant on the inheritance; the transaction does not supply a necessary construction of law. It is a very nice point, and a very new one; whether the intent to purchase the whole interest is sufficient to make the term attendant on the inheritance. The impossibility he was under of purchasing the whole, rendered an express declaration necessary to make it attend the inheritance." Now, at first sight, it certainly does seem impossible to reconcile those parts of the judgment which are printed in Italics. But it appears by an opinion of Mr. Fearne's (m), in consequence of which the cause was reheard, that rents were reserved by the leases granted by the trustees to Sir Andrew Chadwick, and the usual covenants were entered into by him, and the trustees were restrained to that mode of making a title by their trust, which required a reservation of rent, and the usual covenants. This fact at once reconciles every part of the judgment. Lord Thurlow was of opinion, that the reversion of itself was immaterial, *but that the rents reserved by the leases rendered an express (1) Supra. 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