§ 997. It is not a little difficult to ascertain from the authorities the true nature and extent of the duties and liabilities of trustees to preserve contingent remainders; and in what cases they may or ought to join in conveyances to destroy them or not. Lord Eldon has expressed himself unable to deduce the true principle from them. His language is: "The cases are uniform to this extent; that if trustees, before the first tenant in tail is of age, join in destroying the remainders, they are liable for a breach of trust; and so is every purchaser under them with notice. But when we come to the situation of trustees to preserve remainders, who have joined in a recovery after the first tenant in tail is of age, it is difficult to say more, than that no judge in equity has gone the length of holding that he would punish them as for a breach of trust; even in a case where they would not have been directed to join. The result is, that they seem to have laid down, as the safest rule for trustees, but certainly most inconvenient for the general interests of mankind, that it is better for the trustees never to destroy the remainders, even if the tenant in tail concurs without the direction of the court. The next consideration is, in what cases the court will direct them to join. And, if I am governed by what my predecessors have done, and refused to do, I cannot collect, in what cases trustees would or would not be directed to join; as it requires more abilities than I possess to reconcile the different cases with reference to that question. They all, however, agree, that these trustees are honorary trustees; that they cannot be compelled to join; and all the judges protect themselves from saying, that if they had joined, they should be punished; always assuming that the tenant in tail must be twenty-one." 1

[* § 997 a. Marriage settlements for the benefit of the children of the marriage, after the decease of the wife, their shares to be vested at twenty-one or marriage, with a proviso that until the principal should become payable to the children, the trustees should apply the whole of the income, or so much of it as they should think fit, for the education and maintenance of the children, are construed as giving a discretionary trust to the trustees,

is personal, and has not been corruptly exercised, courts of equity will not interpose. This remark is applicable, not to cases like those of trustees to preserve contingent remainders, but to trusts purely personal, and in the discretion of the trustee, as to their exercise.

1 Biscoe v. Perkins, 1 V. & Beam. 491, 492.

and not a mere power, and it was held that the father was entitled to have an allowance for the past and future maintenance of his child, without regard to his ability to maintain the same,1 and an inquiry was directed as to the quantum.]

CHAPTER XXVI.

TERMS FOR YEARS.

[* § 998. Equity subjects terms attendant upon the inheritance to the law of the inheritance.

§ 999. These attendant terms will protect equities and exclude counter-equities.

§ 1000. But will do this only in favor of one having equal equity.

§ 1001. When the term is merged in the inheritance.

§ 1002. Distinction between terms attendant and in gross.

§ 1003. Portions raised by terms a primary charge on realty.]

§ 998. In the next place, in regard to TERMS FOR YEARS, whereby trusts are created to subserve the special objects of the parties. The creation of long terms for years, for the purpose of securing money, lent on mortgage of the land, took its rise from the inconveniences of the ancient way of making mortgages in fee by way of feoffment and other solemn conveyances, with a condition of defeasance. For, by such mode, if the condition was not punctually performed, the estate of the mortgagee at law became absolute, and was subject to encumbrances made by him, and even (as some thought) to the dower of his wife. Hence it became usual to create long terms of years upon the like condition; because, among other reasons, such terms on the death of the mortgagee became vested in his personal representatives, who were also entitled to the debt, and could properly discharge it. But, as this subject will be more fully considered hereafter, it is only necessary to say in this place, that, by analogy to the case of mortgages, terms for years were often created for securing the payment of jointures and

1 Ransome v. Burgess, Law Rep. 3 Eq. 773.

2 Black. Comm. 158; 2 Fonbl. Eq. 2, ch. 4, § 3 (i); id. B. 3, ch. 1, § 2, and note (b); Co. Litt. 290 b, Butler's note (1), § 13; id. 208 a, note (1); Bac. Abridg. Mortgage, A.

See post, Chapter on Mortgages, § 1004 to 1035.

portions for children, and for other special trusts. Such terms do not determine upon the mere performance of the trusts for which they are created, unless there be a special proviso to that effect in the deed. The legal interest thus continues in the trustee after the trusts are performed; although the owner of the fee is entitled to the equitable and beneficial interest therein. At law the possession of the lessee for years is deemed to be the possession of the owner of the freehold. And, by analogy, courts of equity hold that where the tenant for the term of years is but a trustee for the owner of the inheritance, he shall not oust his cestui que trust, or obstruct him in any act of ownership, or in making any assurances of his estate. In these respects, therefore, the term is consolidated with the inheritance. It follows the descent to the heir, and all the alienations made of the inheritance, or of any particular estate or interest carved out of it by deed, or by will, or by act of law. In short, a term, attendant upon the inheritance by express

1 2 Fonbl. Eq. B. 2, ch. 4, § 3, note (i), § 4, note (o); Co. Litt. 290 b, Butler's note (1), § 13; Whitchurch v. Whitchurch, 2 P. Will. 236; Charlton v. Low, 3 P. Will. 330; Villers v. Villers, 2 Atk. 72; Willoughby v. Willoughby, 1 Term Rep. 765. This whole subject was fully considered by Lord Hardwicke, in his masterly judgment in Willoughby v. Willoughby (1 Term. Rep. 763). The following extract from that opinion contains a clear exposition of the points in the text. "What is the nature of a term attendant upon the inheritance? The attendance of terms for years upon the inheritance is the creature of a court of equity, invented partly to protect real property, and partly to keep it in the right channel. In order to do it, this court framed the distinction between such attendant terms and terms in gross, notwithstanding that, in the consideration of the common law, they are both the same, and equally keep out the owner of the fee, so long as they subsist. But as equity always considers who has the right in conscience to the land, and on that ground makes one man a trustee for another; and as the common law allows the possession of the tenant for years to be the possession of the owner of the freehold, this court said, where the tenant for years is but a trustee for the owner of the inheritance, he shall not keep out bis cestui que trust, nor pari ratione, obstruct him in doing any acts of ownership, or in making any assurances of his estate. And therefore in equity such a term for years shall yield, ply, and be moulded according to the uses, estates, or charges, which the owner of the inheritance declares, or carves out of the fee. Thus the dominion of real property was kept entire. Of this we meet with nothing in our books before Queen Elizabeth's reign, when mortgages by long terms of years began to come into use. Before that time, the law looked upon very long terms with a jealous eye, and laid them under violent presumptions of fraud; because they tended to prevent the crown of its forfeitures, and the lord of the fruits of his tenures. Neither could there, much before that time, be any use of a term attendant upon the inheritance, to preserve the limitations of a set

declaration, or by implication of law, may be said to be governed in equity by the same rules, generally, to which the inheritance is subject.1

tlement, in many cases; because the tenant for years was in the power of the owner of the freehold, till the statute 21 Hen. VIII. c. 15, which enabled him to falsify a recovery against the tenant of the freehold. Till then, by such a recovery, the term was gone, and consequently, could attend upon nothing. But since the law was altered by that statute, and the term was preserved, this court could lay hold of it. Proceeding upon these principles, wherever a term for years has been vested in a stranger, in trust for the owner of the inheritance, whether by trust expressly declared, or by construction or judgment of this court, which is called a trust by operation of law, this court has said that the trust or beneficial interest of such a term shall follow or be effected by all such conveyances, assurances, or charges, as the owner creates of the inheritance. Although the law says that the term and the fee being in different persons, they are separate, distinct estates, and the one not merged in the other, yet the beneficial and profitable interest of both being in the same person, equity will unite them for the sake of keeping the property entire. Therefore, if the owner of the inheritance levy a fine sur conusance de droit, or suffer a common recovery to uses, the trust of the term shall follow, and be governed by those uses, although a term for years is not the subject of a fine sur conusance de droit, much less of a common recovery; nor would equity allow the trust of a term in gross to be settled with such limitations. This doctrine is always allowed to have its full effect as between the representatives, that is, the heir, either in fee-simple or fee-tail, of the owner of the inheritance, and the executor, and all persons claiming as volunteers under him; though certain distinctions have been admitted as to creditors, which are not material to the present case. And in general the rule has been the same, whether the trust of the term be created by express declaration, or arise by construction and judgment of this court. On this ground are the cases of Tiffin v. Tiffin, 2 Ch. Cas. 49 and 55, and Vern. 1; Best v. Stamford, 2 Vern. 420; and Preced. in Chanc. 252; Haytor v. Rod, 1 P. Will. 360; Whitchurch v. Whitchurch, before the Lords Commissioners, 1725, 2 P. Will. 236, and Lady Dudley v. Lord Dudley, Precedents in Chancery, 241, 2 Ch. Cas. 160, which was a cause on the custom of London. All these cases were cited at the bar; and I choose to put them together without stating them particularly, because they all tend only to prove this general proposition. But, although in all these cases this court considers the trust of the term as annexed to the inheritance; yet the legal estate of the term is always separate from it, and must be so; otherwise it would be merged. And this gives the court an opportunity to make use of such terms, as a guard and protection to an equitable owner of the inheritance against mesne conveyances, which would carry the fee at common law; or to a person, who is both legal and equitable owner of the inheritance, against such mesne encumbrances, as he ought not to be affected with in conscience. And here the court often disannexes the trust of the term from the strict legal fee; but still in support of right."

§ 999. Still, although the trust or benefit of the term is annexed to the inheritance, the legal interest of the term remains distinct and separate from it at law, and the whole benefit and advantage to be made of the term arises from this separation. For, if two or more persons have claims upon the inheritance under different titles, a term of years attendant upon it is still so distinct from it, that, if any one of them obtains an assignment of it, then (unless he is affected by some of the circumstances which equity considers as fraudulent, or as otherwise controlling his rights) he will be entitled, both at law and in equity, to the estate for the whole continuance of the term, to the utter exclusion of all the other claimants. This, if the term is of long duration, absolutely deprives all the other claimants of every kind of benefit in the land.1

But, if there is a

§ 1000. Supposing, therefore, that A. purchases an estate which, previous to his purchase, had been sold, mortgaged, leased, and charged with every kind of encumbrance to which real property is subject; in this case A. and the other purchasers, and all the encumbrancers have equal claim upon the estate. This is the meaning of the expression, that their equity is equal. term of years subsisting in the estate, which was created prior to the purchases, mortgages, or other encumbrances, and A. procures an assignment of it in trust for himself, this gives him the legal interest in the lands during the continuance of the term, absolutely discharged from, and unaffected, by any of the purchases, mortgages, and other encumbrances, subsequent to the creation of the term, but prior to his own purchase. This is the meaning of the expression in assignments of terms, that they are to protect the purchaser from all mesne encumbrances. But it is to be observed, that A., to be entitled in equity to the benefit of the term, must have all the following requisites: he must be a purchaser for a valuable consideration; his purchase must, in all respects, be a fair purchase, and free from every kind of fraud; and at the time of his purchase he must have no notice of the prior conveyance, mortgage charge, or other encumbrance. It is to be observed, that mortgagees, lessees, and other encumbrancers are purchasers in this sense, to the amount of their several charges, interests, or rights. If any person of this description, unaffected by notice or fraud, takes a defective conveyance or assignment of the fee, or of

1 Co. Litt. 290 b, Butler's note (1), § 13.