*SECTION X.

OF PROTECTION FROM LIS PENDENS.

1. Lis pendens to be registered.

2. General operation of statutes in favor of purchasers.

1. By the same act (a) it is enacted, that no lis pendens shall bind a purchaser or mortgagee without express notice thereof, unless and until a memorandum or minute, containing the name and the usual or last known place of abode, and the title, trade, or profession of the person whose estate is intended to be affected thereby, and the court of equity, and the title of the cause or information, and the day when the bill or information was filed, shall be left with the Senior Master of the Court of Common Pleas, who shall forthwith enter the same particulars in a book as aforesaid, in alphabetical order, by the name of the person whose estate is intended to be affected by such lis pendens; and such officer shall be entitled for any such entry to the sum of 2s. 6d. ; and the provisions contained in the act in regard to the re-entering of judgments every five years, and the fee payable to the officer thereon, shall extend to every case of lis pendens which shall be registered under the provisions of the act (1).

2. With respect to the general operation of statutes passed in favor of purchasers, it may be laid down as a rule, that equity will not permit them to be taken advantage of where the purchasers have notice of the incumbrance or deceit which the statutes were intended to guard them against, because qui scit se decipi non decipitur, unless the policy of the act forbids the Courts from holding notice to be binding.

(a) 2 Vict. c. 11, s. 7; 7 & 8 Vict. c. 90, s. 10, Ireland.

(1) See Post, 1044, et seq.

VOL. II.

64

[*1013]

*CHAPTER XXII.

OF EQUITABLE RELIEF AND PROTECTION.

SECTION I.

OF EQUITABLE RELIEF AND PROTECTION WHERE THE PURCHASER HAS NO NOTICE.

3. Purchaser protected although equi- 27. If a general statement, party is

22. Production of deed with evidence on 47. Rule does not extend to equity of

50, 51. Equal equities: contribution by | *57. No remedy if evicted at law. several purchasers to judgment 58. Prior incumbrancer purchasing lets debts. in puisne ones.

52. Purchaser of part relieved against 59. A mortgagee buying after agreement

concealed incumbrance, by the

other part.

53. Barnes v. Rackster.

for lease bound by it.

60. How prior incumbrances should be

kept on foot on purchase.

54. Purchase set aside: allowance for 61. Bill to perpetuate testimony upon

improvements.

56. Unless fraud.

claims to a reversion.

1. THUS have we taken a cursory view of the several statutes passed for the relief or protection of purchasers. The relief and protection afforded to purchasers by the rules of equity form the next branch of our inquiry.

2. A court of equity acts upon the couscience, and as it is impossible to attach any demand upon the conscience of a man who has purchased for a valuable consideration bona fide, and without notice of any claim on the estate, such a man is entitled to the peculiar favor and protection of a court of equity (1).

3. In a late case (a), where the seller's equitable title depended upon a forged will, which of course was produced, it was suggested by the Court, that the purchaser was not entitled to its protection, but this view was ultimately abandoned. The Court observed, that its impression at the opening of the case was, that the protection of the legal estate extended only to cases where the title of the purchaser for valuable consideration without notice, was impeached by reason of some secret act or matter done by the vendor, or those under whom he claimed; but upon full consideration of all the authorities and the dicta of judges and text writers, and the principles upon which the rule is grounded, the Court was of opinion that the protection of the legal estate was to be extended not merely to cases in which the title of the purchaser for valuable consideration without notice is impeachable, by reason of a secret act done, but also to cases in which it is impeached by reason of the falsehood of a fact of title asserted by the vendor, or those under whom he claims, where such asserted title is clothed with

(a) Jones v. Powles, 3 Myl. & Kee. 581; see. 1 Jones & Lat. 264.

(1) See Frost v. Beekman, 1 John. Ch. 298; 1 Daniel Ch. Pr. (1st Am. ed.) 636 in notes.

possession, and the falsehood of the fact asserted could not have been detected by reasonable diligence. This, I may be allowed to observe, is no doubt the true view of the case.

4. And it has been laid down as a general rule, that a purchaser bona fide, and for a valuable consideration, without notice of any defect in his title at the time he made his purchase, may buy or get in a statute, mortgage, or any other incumbrance (and that although it is satisfied); and if he can defend himself at law by any such incumbrance, his adversary shall never be aided in a court of equity for setting aside such incumbrance; for equity will not *disarm a purchaser, but assist him; and precedents of this nature are very ancient and numerous, viz. where the Court hath refused to give any assistance against a purchaser, either to an heir, or to a vendor, or to the fatherless, or to creditors, or even to one purchaser against another (b) (1).

5. And the favor and protection of a court of equity is extended to a purchaser, not only where he has a prior legal estate, but also where he has a better right to call for the legal estate than any other person (c) (2). And a judgment, although it authorized execution of a moiety only, yet in the administration of assets, enabled a sale of the estate, and was consequently a protection to a purchaser of the whole estate (d).

6. In Mackreth v. Symmons (e), Lord Eldon, during the argument, asked whether there was any case where a third mortgagee had excluded the second, if the first mortgagee, when he conveyed to the third, knew of the second. When the case of Maundrell v. Maundrell, he added, was before him, he looked for, but could not find, such a case; that where there was bad faith on the part of the first mortgagee that equity was applied. Sir Samuel Romilly replied, that he did not believe that was ever decided, and there would be great difficulty in deciding it in favor of the third mortgagee, who puts himself in the place of the first.

(b) Basset v. Nosworthy, Finch, 102; Jerrard v. Saunders, 2 Ves. jun. 454, [Sumner's ed. note (a).] See Anon. 2 Cha. Ca. 208; Hithcox v. Sedgwick, 2 Vern. 156; Goleborn v. Alcock, 2 Sim. 552.

(c) See 2 Vern. 600; Willoughby v. Willoughby, 1 Term Rep. 763; Blake v. Sir Edward Hungerford, Prec. Cha.

158; Charlton v. Low, 3 P. Wms. 328. Ex parte Knott, 11 Ves. jun. 609; Shine v. Gough, 1 Ball & Beatty, 436; Bowen v. Evans, 1 Jones & Lat. 264; see p. 782, supra.

(d) Hartly v. O'Flaherty, Beatty, 80, 81; see 3 Sim. 300; supra, ch. 21, s. 4. (e) 15 Ves. jun. 335.

(1) Boon v. Chiles, 10 Peters (S. C.) 177, 210, 211.
(2) See Williamson v. Gordon, 5 Munf. 257.

7. Probably this is not accurately reported, and Lord Eldon referred to a case where a first mortgagee with notice of the second, joined in the creation of a third mortgage, by transferring his first mortgage to the intended new mortgagee. And this-the distinction between a trustee and a mortgagee being kept in view-is analogous to the case of a trustee with notice, joining in the creation of an incumbrance without communicating his knowledge. It is impossible to suppose that Lord Eldon and Sir Samuel Romilly could make such a slip as the report represents, for nothing is better settled than the point as stated in the report: the question in such

case is, whether the third mortgagee had knowledge of the second when he paid his money and obtained his security; and not whether the first mortgagee had notice of the second mortgage at the time he makes the transfer to the third. Even in the common *case of a bill filed to settle priorities and to redeem and foreclose, where of course all the mortgages are disclosed, the first mortgagee may at any time before a decree, even although he has submitted by his answer to be redeemed by the second mortgagee, transfer his mortgage to the third, and so enable the latter to tack at the expense of the second mortgagee, if he (the third mortgagee) had not originally notice of the second mortgage (ƒ). It is much too late to agitate this question, which Lord Eldon, like all other judges, considered as settled (g) (I) (1).

(f) Brace v. Duchess of Marlborough, 2 P. Wms. 491; Belchier v. Butler, Renforth v. Ironside, 1 Ed. 523; Belchier v. Renforth, 5 Bro. P. C., by

Toml. 29; Robinson v. Davison, 1 Bro.
C. C. 63.

(g) Ex parte Knott, 11 Ves. jun. 619; Barnett v. Weston, 12 Ves. jun. 134, 135.

(I) The above observations were written before I met with Peacock v. Burt, Coote, Mortg. 2d ed. 693.

(1) See 1 Story Eq. Jur. §412 et seq.; 4 Kent (6th ed.) 176 to 179. In the United States, the system of tacking is never allowed as against mesne incumbrances, which are duly registered. "The doctrine of tacking," says Mr. Chancellor Kent, "is founded on the assumption of a principle which is not true in point of fact; for as between A, whose deed is honestly acquired, and recorded to-day, and B, whose deed is with equal honesty acquired, and recorded to-morrow, the equities upon the estate are not equal. He who has been fairly prior in point of time, has the better equity, for he is prior in point of right." "And," he adds, "I presume that the English law of tacking is with us very generally exploded." 4 Kent (6th ed.) 178, 179; 1 Story Eq. Jur. $419 in note; Grant v. U. S. Bank, 1 Caines Cas. Err. 112; Frost v. Beekman, 1 John. Ch. 298, 299; Parkist v. Alexander, 1 John. Ch. 398, 399; St. Andrew's Church v. Thompkins, 7 John. Ch. 14; 1 Cruise Dig. by Mr. Greenleaf, Vol. 2, Tit. 15, Ch. 3, $36, note, §55, note; Dorrow v. Kelley, 1 Dallas, 142; Cleaveland v. Clark, Brayt, 166; Bridgen v. Carhartt, 1 Hopkins, 234. In most of the United States, also, the statutes, providing for the redemption of mortgaged estates, expressly give this right of redemption, on pay