1857. CARTER V. CARTER. Judgment. The next incumbrance to which it is necessary to advert with reference to the question of priorities is, the charge created in favour of Tiley, which is the first charge on the leasehold interest in the tithe rentcharge and tithe leaseholds. Subject to these incumbrances, certain other charges were created in favour of the Chilcotts, who came in after all the various charges to which I have referred. The great and important question as far as the Defendant Prosser is concerned is this:-it was contended, and I think rightly contended, that all the actual estate and interest, whether legal or equitable, of John Carter in the four eighth parts of the estates comprised in the mortgage to Prosser must have passed by that conveyance. As to that, I apprehend that no reasonable doubt could have been suggested, even if I had been referred to a case, which, in the course of this inquiry, and looking through all the authorities on the subject, I have had occasion to examine, a case with which much fault is found by Lord St. Leonards (a), I allude to that of Fausset v. Carpenter (b) in the House of Lords. That case, at the hearing of which only two learned Lords were present, Lord Tenterden and Lord Wynford, came before the House upon a writ of error, and the question was as to the legal effect of a conveyance in which the parties to the conveyance were thus situated:-One, whose name was Palmer, happened to be a trustee under the marriage settlement of another of the parties to the conveyance, named Catherine Newcomen. He also, in right of his wife, a sister of Catherine Newcomen, had himself a beneficial (a) Treatise of the Law of Property as administered by the House of Lords, pp. 76-83. (b) 2 Dow & Cl. 232. interest in one third part of the property. A sale was made of all the three parts to a purchaser; all the parties executed the conveyance, Catherine and Palmer conveying at the same time; and the House of Lords held that the effect of the deed was not to pass in law the interest which Palmer held as trustee under Catherine's settlement. That decision, no doubt, has occasioned considerable perplexity, and, as Lord St. Leonards observes, it was a subject of consideration whether it would not be advisable to bring in a short Act of Parliament to reverse it. But that course was never taken; and, if the present case were like that of Fausset v. Carpenter, I should hold myself to be bound by it. One analogy, indeed, on which the House proceeded in saying that a devise of real estates, with charges created upon these real estates, will not pass such estates as are held by the testator on trust, might possibly have been a ground for supporting the decision, if the circumstances had been simply that Palmer had only a beneficial interest in one capacity, and in the other nothing but a trust estate. But there was this additional circumstance, which was possibly overlooked, but which appears to occasion an insuperable difficulty in supporting the judgment, notwithstanding the high authority of the Court which pronounced it, namely, that the very lady for whom Palmer was trustee, was one of the parties to the conveyance, and intended to pass her beneficial interest by the conveyance; yet, according to the doctrine of the House of Lords, the purchaser did not acquire the legal interest, although the trustee and the cestui que trust had joined in the conveyance. That is a difficulty that must be found to be very great if the case can ever be reconsidered. In this case no such question arises, because, even if you 1857. CARTER บ. CARTER. Judgment. 1857. CARTER ข. CARTER. Judgment. are allowed to say a mere legal estate did not pass by that which purported to pass, for valuable consideration, a property in which the conveying party had a beneficial interest; yet John Carter the younger had a beneficial interest for life under the second will of the testator, as well as the legal estate; and therefore it seems impossible to hold that the whole of his estate and interest, whether legal or equitable, in the four eighth parts in question did not pass by the mortgage to Prosser. Holding, therefore, as I do, that the whole of that interest passed, and that James Prosser by the surrender and admittance acquired the legal estate in fee in one eighth part of the copyholds to which he was so admitted, the really serious question, which was extremely ably argued by Mr. James, is this: What ought to be the result of his thus obtaining the legal estate accidentally (if I may so term it), and certainly without notice in point of fact of the trusts upon which the legal estate was held. In considering this question, I have had occasion to look through the whole class of authorities with reference to the protection which this Court affords to purchasers without notice. The cases have gone to a very considerable length unquestionably-the earlier cases, perhaps, to a greater length than would be supported by more modern decisions. One of the earlier cases is cited in Vernon as Sir John Fagg's case (a), and is reported in 1st Chancery Cases, under the name of Sherly v. Fagg (b), but without the circumstances, mentioned in the narrative of the case in Vernon, of the actual fraud which appears to have existed, and according to which the case is an authority to the full extent, that even an advantage obtained by fraud on the part of a purchaser without notice would be supported in order (a) 1 Vern. 52, 53. (b) 1 Chanc. Cas. 68. Compare 2 Vern. 701, n. 2. to maintain his title. Vernon in narrating the case, states that Sir John Fagg, being a purchaser, came into a man's study, and there laid hands on a statute that would have fallen on his estate, and put it up in his pocket-evidently without any authority-in fact stole it, and nevertheless, having thereby obtained an advantage in law, he was protected in the possession of that deed. The facts, as to how he obtained possession of the deed, do not appear as the case is narrated in the more full report in 1st Chancery Cases, and I should apprehend it is sufficiently clear, that a case to such an extent as that would never be upheld. There are several cases in Vernon which go very farcases some of which are reported, while others are merely referred to in the course of the discussion. In one, there was clearly no title existing at all, as the law then regarded it, the title being merely a parliamentary title during the usurpation. Nevertheless, the purchaser was held to be protected; having got the legal estate, he was not interfered with by this Court. There are other cases of that description. An early case occurs in Viner, which shews the great length to which the doctrine has been carried. It is that of Turner v. Buck (a), argued by Sir Joseph Jekyll, before Lord Cowper. The case is narrated very shortly. The Defendant had purchased of a person who in effect was held to be in possession as a mere disseisor. He had taken a conveyance without notice of any other title; and afterwards, the disseisee being a trustee, the cestui que trust applied to this Court to compel the disseisee, his trustee, either to convey to him the legal estate-probably it would have been difficult to compel a conveyance in consequence of its being (a) 22 Vin. Abr. 21. 1857. CARTER บ. CARTER. Judgment. 1857. CARTER v. CARTER. Judgment. turned to a mere right of entry--or to proceed in ejectment There are numerous cases in which persons, purchasers for value, and getting possession of the deeds in a legitimate manner, have been held protected. Wallwyn v. Lee (a) was a case of that kind. There, a mortgage had been created by the settlor, who was simply a tenant for life under the settlement, and after his death the tenant in tail in possession applied to this Court for a discovery and delivery of the title deeds, which, he insisted, must be regarded as unduly in the possession of the mortgagee, he having no interest in the estate. But Lord Eldon, after considerable deliberation, held that the Court would not interfere to that extent, that the mortgagee was to be protected in the advantage he had gained by obtaining possession of the deeds, and that no course could be taken against him, inasmuch as he was a purchaser for valuable consideration without notice. A case was cited before me in argument, where a good many of the decisions I have mentioned may be found. The case of Jones v. Powles (b), before Sir John Leach, which was a case of the grossest description as regards the vendor. The vendor had forged a will and sold under the forged title. He then found out that there was a satisfied mortgage. The mortgage having been satisfied, the mortgagee was, of course, a trustee for the true owner of the estate. The vendor, who knew he was not owner of the 1 |