a trust, in other words, that if a person inherit a trust and die before actual seisin of the estate, it shall descend to the brother of the half blood, as heir to the father, in preference to the sister of the whole blood; but if there was such a receipt of the rents and profits as constitutes equitable seisin, the sister of the whole blood, as heir to the brother, will exclude the brother of the half blood.

The doctrines of the Court upon the subject of equitable disseisin cannot be better illustrated than by a statement of the well-known case of The Marquis of Cholmondeley v. Lord Clinton (q). The circumstances were briefly as follows:-George, Earl of Orford, conveyed certain manors and hereditaments to the use of himself for life, remainder to the heirs of his body, remainder as he should by deed or will appoint, remainder to the right heirs of Samuel Rolle, with a power reserved of revocation and new appointment. Some time after the Earl executed a mortgage in fee, which operated in equity as a revocation of the settlement pro tanto. In 1791 the Earl died without issue and intestate, and upon his death the ultimate remainder (which had been a vested interest in the Earl himself, as the heir of Samuel Rolle at the date of the deed,) should have descended to the right heir of the Earl, but, the parties having mistaken the law, the person who was heir of Samuel Rolle at the death of the Earl was allowed to enter on the premises, and continued in possession, subject to the mortgage, up to the commencement of the suit. The bill was filed in 1812, by the assign of the right heir of the Earl against the mortgagee, and the assign of the right heir of Samuel Rolle, for redemption of the premises, and an account of the profits. It was

(q) 2 Mer. 171; 2 J. & W. 1.

debated whether, as the legal estate was vested in the mortgagee, and the heir of Samuel Rolle had held the possession subject to a subsisting mortgage, the assign of the Earl of Orford's heir, to whom the equity of redemption belonged in point of right, had been disseised of his equitable interest, and was now barred by the effect of time. Sir W. Grant argued, that "although there might be what was deemed a seisin of an equitable estate, there could be no disseisin, first, because the disseisin must be of the entire estate, and not of a limited and partial interest in it-the equitable ownership could not possibly be the subject of disseisin; and, secondly, because a tortious act could never be the foundation of an equitable title that an equitable title might undoubtedly be barred by length of time, but could not be shifted or transferred. It was admitted in the present case the equity of redemption subsisted; it must therefore belong to some one, and could only belong to the original cestui que trust (r). That so long as the trust subsisted, so long it was impossible that the cestuis que trust could be barred. The cestuis que trust could only be barred by barring and excluding the estate of the trustee (s)." Sir W. Grant did not then decide the point, but directed a case for the opinion of the King's Bench on a question of law, and retained the bill till the judges' certificate should be returned.

The cause was afterwards reheard on the equity reserved before Sir T. Plumer, who determined that the original cestui que trust had been disseised, and was consequently barred (1). "The grounds," he said, " upon which it is contended that the holder of the rightful

(r) 2 Mer. 357-9. (s) Ib. 361.

(t) 2 J. & W. 1.

equity is not bound by laches and nonclaim are, that the tortious possessor does not claim to be the owner of more than the equitable estate-the legal estate remains unbarred that there is no disseisin abatement or intrusion of a trust-the possessor is only tenant at will, and may be dispossessed at any time by the trustee of the legal estate-he has therefore only a precarious and permissive possession that tortious possession can never be the foundation of an equitable title (u). But this reasoning proceeds on a mistaken view of the manner in which, and the grounds upon which, the bar from length of time operates. The question respects the plaintiff's right to the remedy, not the defendant's title to the estate. A tortious act can never be the foundation of a legal any more than of an equitable title. The question is, whether the plaintiff has prosecuted his title in due time. The quiet and repose of the kingdom, the mischief arising from stale demands, the laches and neglect of the rightful owner, and all the other principles of public policy take away the remedy, notwithstanding the title veri domini, and the tortious holding of the possessor (v). As to the argument that a title in a Court of equity may be lost by laches, but cannot be transferred without the act of the party, the case is the same in this respect both in equity and law. The title is changed in both by the operation of a public law upon public principles without regard to the original private right. If the negligent owner has for ever forfeited by his laches his right to any remedy to recover, he has in effect lost his title for What, then, is to become of the title, whether legal or equitable? Is it to become hæreditas jacens, belonging to no one? Is it to devolve on the crown, or (v) Ib. 155.

ever.

(u) 2 J. & W. 153.

to pass by escheat? The plaintiff is barred of his remedy: the defendant keeps possession without the possibility of being ever disturbed by any one: the loss of the former owner is necessarily his gain; it is more-he gains a positive title under the statute at law, and, by analogy, in equity (x). If the mere existence of an old legal estate would have the effect of preventing the bar attaching upon the equitable estate, all the principles that have been established respecting equitable estates and titles would be overturned. According to this reasoning, whenever the legal estate is outstanding, in an old term, for instance, to attend the inheritance, the earliest equitable title must in all cases prevail: quiet enjoyment for 60, 100, or 200 years or more would be no security, if the old term had existed longer it would always be open to inquiry in whom was vested the equitable title which originally existed when the old term was created (y)."

On appeal to the House of Lords his Honor's decision was affirmed, and the principle on which it proceeded was approved. Lord Eldon said, "the connection between the legal estate in the term and the equities of the persons entitled to the inheritance was by no means indissoluble ;" and he instanced the case of a second mortgagee, without notice of the incumbrance of the first, getting in an outstanding term by which he shifted to himself the equity that was previously in the first. "He could not agree, and had never heard of such a rule as that adverse possession, however long, would not avail against an equitable estate: his opinion was, that adverse possession of an equity of redemption for twenty years was a bar to another person claiming (x) 2 J. & W. 155, 156. (y) Ib. 157.

the same equity of redemption, and worked the same effect as abatement or intrusion with respect to legal estates, and that for the quiet and peace of titles and the world it ought to have the same effect (z)."

IV. Of dower and curtesy.

A trust (a), or equity of redemption (b), of freeholds, or copyholds (c), is exempt from the lien of dower and freebench, but is subject to the curtesy of the husband (d).

In Banks v. Sutton (e), a case of dower, Sir J. Jekyll took a distinction between trusts created by the husband himself, and trusts originating from a stranger; that in the former case the wife should not be dowable, for it might reasonably be supposed the husband had intended. to bar her dower, but in the latter case there was no ground for such a presumption, and therefore the title to dower should attach. His Honor, however, did not rest his decision upon this distinction (ƒ), and in subsequent cases the refinement has been rejected (g).

(z) Ib. 190, 191.

(a) Colt v. Colt, 1 Ch. Re. 254; Bottomley v. Lord Fairfax, Pr. Ch. 336; Attorney-General v. Scott, Rep. t. Talb. 138; Chaplin v. Chaplin, 3 P. W. 229; Shepherd v. Shepherd, Id. 234, note (D); Curtis v. Curtis, 2 B. C. C. 630, per Lord Alvanley; Lady Radnor v. Rotheram, Pr. Ch. 65, per Lord Somers; Godwin Winsmore, 2 Atk. 525.

V.

(b) Dixon v. Saville, 1 B. C. C. 326; Reynolds v. Messing, cited Casborne v. Scarfe, 1 Atk. 604.

(c) Forder v. Wade, 4 B. C. C.

521.

(d) Chaplin v. Chaplin, 3 P. W. 234, per Lord Talbot; Attorney-General v. Scott, Rep. t. Talb. 139, per eundem; Watts v. Ball, 1 P. W. 108; Sweetapple v. Bindon, 2 Vern. 536; Cunningham v. Moody, 1 Ves. 174; Casborne v. Scarfe, 1 Atk. 603. (e) 2 P. W. 700. (ƒ) Ib. 715.

(g) See Curtis v. Curtis, 2 B. C. C. 630; D'Arcy v. Blake, 2 Sch. & Lef. 391; Godwin v. Winsmore, 2 Atk. 526; Burgess v. Wheate, 1 Ed. 197.