any, of such monies as should be raised in the lifetime of the Duke unto the Duke, and the surplus of such as should be raised after his decease unto the Marquis of Blandford; and, subject to the trusts aforesaid, the trustees were to stand seised of the said hereditaments in trust for the said Duke for his life, and after his decease in trust for the Marquis in fee. After the death of the Duke the trustees converted the whole of the estate into personalty; and a creditor, whose judgment had been entered up against the Marquis of Blandford before the date of the trust deed, sought to attach the trust monies in the hands of the trustees, as bound by the judgment. Sir J. Leach said, "The creditor insists, that by force of his judgment he has a lien upon the monies produced by the sale of the trust estates; and if the interest of the Marquis were a vested interest in land, the creditor would be entitled; but the creditor had no legal lien upon the trust estates, but a possible equitable lien depending upon a contingency. The trustees had a full authority to sell, and to convert the realty into personalty. If any part had been unsold by the trustees, it would have remained land, and the judgment would have attached upon it; but it was all sold by the trustees, and the contingency which would have entitled the judgment creditor never took effect."

And the same principle seems to apply, where a judgment is entered up against a person after he has contracted to sell. But upon this subject we have the following opinion of Mr. Serj. Hill:-H. A. S., seised in fee of an estate, subject to his mother's jointure and to younger children's portions, contracted for the sale of the property in lots to different purchasers. After the date of the contracts H. A. S. executed a

conveyance to trustees, upon trust to convey to the different purchasers, and to invest part of the purchase money in the funds as an indemnity against the jointure and portions, and to pay the residue to himself. Subsequently to the deed of trust H. A. S. acknowledged a judgment. Mr. Serj. Hill was consulted on the part of the trustees, whether they would be safe in paying the money to H. A. S., as against the judgment of which they had notice, and also as against judgments, if any, of which they had no notice. The opinion was as follows: "As to the judgment of which the trustees had notice, though, to many purposes, the estate agreed to be sold is from the time of the contract the estate of the purchaser ; yet I think the vendor is not before payment of the money to be considered a mere trustee, for the estate continues his at law, and even in equity he has a right to detain it until payment of the purchase money; and, therefore, the judgment creditor hath a right to so much of the purchase money as is sufficient to satisfy the judgment; and the trustees having notice of his right ought to pay it, if the money is in their hands. As to the judgments, if any, of which the trustees have no notice, I think a court of equity will not make them pay the money over again, if they apply it according to the deed of trust, because I think equity in the case of a judgment creditor, and a bona fide purchaser or a trustee without notice, will not interpose on either side, but will leave the law to take its course (c)."

And Sir J. Leach appears to have concurred in this opinion, that the vendor's interest after the contract is bound by a judgment; for in Forth v. The Duke of Nor

(c) Cited Forth v. Duke of Norfolk, 4 Mad. 506, note (a).

folk (d), where a person had mortgaged an estate in fee, and then contracted to sell, and afterwards, before the conveyance, acknowledged a judgment, Sir J. Leach said, "An assignee for valuable consideration is discharged of the claim of the judgment creditor, unless he has notice of it before the consideration paid. If A., before the actual conveyance to him, had received notice of the judgment, then, being a purchaser of an equitable interest in a freehold estate from the debtor, and not having paid his purchase money, he would have been equally affected with the judgment as the debtor himself; and if he had afterwards paid the whole purchase money to the debtor, he would have still remained liable to the judgment creditor."

But in Lodge v. Lyseley (e) Sir L. Shadwell said, "he should not have given the opinion which the learned Sergeant had done, for it appeared to him that from the time H. A. S. entered into binding contracts to sell the lands, he not having judgments against him at that time, the purchasers had a right to file a bill against him, and have the legal estate conveyed." And this upon principle appears certainly the sounder doctrine, for if the vendor die after the contract, but before the conveyance, the purchase money will go to the executor; and if the contract work a notional conversion of the land into money in respect of the vendor's representatives, how shall not the same consequence follow in respect of the vendor's judgment creditors?

If a person convey an estate to trustees upon trust to sell for a limited purpose, and to pay the surplus to himself, his executors, and administrators, the land by the

effect of the deed is converted into money (ƒ), and is therefore not liable to a judgment (g); but if the settlement be voluntary, it is then void as against a judgment creditor by the statute of Elizabeth (h).

The next point for consideration is, how far the lien of the judgment creditor against the trust estate extends. As equity follows the analogy of law, the inquiry may at first sight appear to be superfluous; but, on reference to the cases upon the subject, it will be found the authorities cannot be reconciled without the aid of some rather subtle distinctions.

A judgment creditor may come into a court of equity upon two grounds. First, upon a legal elegit, where he either seeks to remove an impediment to the legal execution of it, or, after the death of the conusor, sues for payment of his debt out of the conusor's personal assets, and, if they should be insufficient, then by sale (i) of his real estate: or, secondly, upon an equitable elegit, on the ground that he has no legal lien, and therefore can have no legal process. As the extent of relief ought in both cases to be the same, and the court has never attempted to take a difference, the authorities determined upon either head may be cited as applicable to the other. Compton v. Compton (k), as stated in the Registrar's

(f) Van v. Barnett, 19 Ves. 102; Biggs v. Andrews, 5 Sim. 424. The decision in Wright v. Rose, 2 Sim. & Stu. 323, can scarcely be supported: see Anon. case, cited Ripley v. Waterworth, 7 Ves. 436, 437.

(g) Lodge v. Lyseley, 4 Sim. 70. (h) 13 Eliz. c. 5.

the possession of the lands till the satisfaction of the debt, but equity assumes the jurisdiction of facilitating the remedy by a sale. See Barnwall v. Barnwall, 3 Ridg. 61; O'Fallon v. Dillon, 2 Sch. & Lef. 19; O'Gorman v. Comyn, Ib. 139; Stileman v. Ashdown, 2 Atk. 610. (k) Cited in Stileman v. Ash

(i) An elegit would at law give down, Amb. 15.

Book, was this:-Richard confessed a judgment, and died intestate. Henry, his son and heir, filed a bill against the administratrix of his father and the persons entitled to the benefit of the judgment, praying that the debt might be discharged out of his father's personal estate to the relief of the lands. Henry died, and the suit was revived by Hoby, his son and heir, and at the hearing it was decreed, somewhat unaccountably, that the plaintiff should pay the judgment. Upon this Pigott, the party interested in the judgment, filed a cross-bill against the plaintiff in the former suit to have the decree carried into execution, and the court on the hearing made the order as before. Against this decree the plaintiff Hoby appealed, and Lord Keeper Harcourt then directed that the personal estate of Richard should be applied in the first instance, and that Hoby should not be personally charged with the judgment debt, but should make good the same so far only as any rents and profits of the real estate of Richard had come to his hands; but in case such personal estate, rents, and profits should fall short of the judgment, then the deficiency should be made good "by sale of the whole real assets of Richard liable to the judgment (7)." The authority of this case cannot however have much weight, for, as was observed by Lord Hardwicke (m), the point whether the whole or a moiety should be sold, appears not to have been discussed.

In Stileman v. Ashdown (n) a father purchased an estate in the joint names of himself and his son, and afterwards confessed a judgment, and died in his son's lifetime.

(1) Reg. Lib. A. 1711, f. 134. (m) Stileman v. Ashdown, Amb.

17.

(n) 2 Atk. 477.