37. A MAXIM is the embodiment of a general truth or principle expressed in the shape of a familiar adage. There are in equity several of these maxims in which the general principles of chancery jurisdiction, and the methods by which they are applied, are succinctly expressed. I. The first of these maxims is that equity will not suffer a right to be without a remedy. The principle expressed by this maxim is, indeed, the foundation of equitable jurisdiction, because, as we have seen, that jurisdiction had its rise in the inability of the common law courts to meet the requirements of justice. Whenever, therefore, an infringement of legal rights of a civil, as distinguished from a criminal, nature exists, for which there is no other remedy, a court of chancery will be ready to afford one. Two qualifications are to be attached to this maxim. In the first place the right must be one of which municipal law can take cognizance, and not one which falls merely within the scope of moral law. There are many matters in which a man is answerable in foro conscientiæ alone, and with these equity cannot interfere. Thus, while the jurisdiction of courts of equity in questions of fraud is very broad, it nevertheless does not pretend to set aside a transaction simply because it is dishonorable, or is opposed to that delicate sense of right which every conscientious man ought to have. In other words, equity does not pretend to enforce all the principles of sound morals. In the second place, equity will not afford relief where there has always been a full, adequate, and complete remedy at law. In such a case there is no ground for the interference of equity. But if a court of equity has originally assumed jurisdiction over a particular class of cases, it will not, as a general rule, be ousted from that jurisdiction simply because, in the progress of common law improvement, redress comes to be subsequently obtainable at law. When the jurisdiction of courts of chancery depends upon precise statutory regulations, the operations of this maxim are, of course, controlled by the language of the particular legislative provision by which it is regulated.' And so where a case, formerly cognizable in chancery alone, is, by statute, brought within the scope of common law jurisdiction, the equitable jurisdiction may sometimes be ousted. Thus it has been decided in South Carolina that the power conferred by statute of calling the opposite party as a witness in common law actions, has taken away the jurisdiction by bills for discovery in chancery. But under the English statute a different rule prevails.3 38. II. The second maxim which will be noticed is that equity follows the law. The meaning of this maxim is that equity applies to equitable titles and interests those rules of law by which legal titles and interests are regulated, provided this can be done in a manner not inconsistent with the equitable titles and interests themselves. Thus equitable estates are subject to the same laws of inheritance as legal estates, and their devolution is the same. And so, as at common law the husband was entitled absolutely to his wife's chattels in possession, he is in like manner considered entitled to chattels of which she is the equitable 1 See the cases of Boyce v. Grundy, 3 Peters, 215; Oelrichs v. Spain, 15 Wallace, 228; Grand Chute v. Winegar, Id. 375; Woodman v. Freeman, 25 Maine, 531; and Clarke v. Robinson, 58 Id. 137; and the statutory provisions in the United States, and in Delaware, Alabama, New Hampshire, Massachusetts, Connecticut, and Oregon, as set forth, ante, p. 18, note. 2 Hall v. Joiner, 1 S. C. 186. 3 Smith's Outline of Equity, 483. So also in New Jersey; Shotwell v. Smith, 5 C. E. Green, 70. owner. But where the property is settled to the separate use of a feme coverte, equity will not suffer the title of the husband to be asserted, for to do so would be to defeat the title which has been created in equity for the benefit of the wife. In the case of executory trusts, also, equity will sometimes refuse to apply the strict rules by which legal estates are controlled; but this is because such trusts are in an inchoate condition, and the exact quality and duration of the estate is not, in them, strictly defined. Equity also may be said to follow the law when rights in equity are considered barred by lapse of time in analogy to the statutes of limitations. 39. III. Another maxim is vigilantibus non dormientibus æquitas subvenit, the meaning of which is sufficiently obvious. It is designed to provoke diligence, to punish laches, and to discourage the assertion of stale claims. By virtue of this maxim such claims are rejected in equity, independently of any statute of limitations.1 In many cases equitable relief depends upon the discretion of the chancellor, and the laches of the complainant is often one of the most important of the elements which are taken into consideration when that discretion is exercised. 40. IV. Between equal equities the law will prevail. If two persons have each an equally good equitable right, but one of them has the legal title to the subject of the dispute, equity will not interfere, but leave them to the courts of law, when, of course, the holder of the legal title will prevail. Thus if a purchaser for a valuable consideration, without notice of a prior equitable right, obtains the legal estate at the time of his purchase, he will be entitled to priority in equity as well as at law.2 41. V. Another equitable maxim is that equality is equity. This may be illustrated by the manner in which the court acts in the case of a power in trust, where the donee of the power who has the option of selecting out of a class has failed to exercise his discretion. In such a case, if there is more than one intended beneficiary, equity will divide the property equally among all. 42. VI. He who comes into equity must do so with clean 1 Smith's Eq. 19. Hill on Trustees, 169, note. 2 Note to Basset v Nosworthy, 2 Lead. Cas. Eq. 5. 3 See post, Part I., Chap. II. hands. Thus a party who seeks to set aside a transaction on the ground of fraud, must, himself, be free from any participation in the fraud, if he desires relief in equity. Of course this only applies to the particular transaction under consideration, for the court will not go outside of the case for the purpose of examining the conduct of the complainant in other matters, or questioning his general character for fair dealing. 43. VII. He who seeks equity must do equity. The usual illustration of this maxim is the case of a borrower of money on usurious interest, who comes into a court of equity to ask for relief by having the transaction set aside. Equity will not afford him redress except upon the terms of his returning the amount actually borrowed with lawful interest, because it is as equitable that the person who has loaned the money should have the amount with lawful interest returned to him, as that the borrower should be relieved from his unjust obligation to pay a usurious rate. Another, and a striking illustration of this maxim, is found in the rule that when a husband comes into chancery for the purpose of getting in his wife's equitable property, he will not be assisted except upon the terms of making a reasonable settlement upon his wife. 44. VIII. Equity looks upon that as done which ought to be done. This is a very important maxim, and one which lies at the foundation of many of the great doctrines in equity. For the purpose of reaching exact justice, equity will frequently consider that property has assumed certain forms with which it ought, in justice, to be stamped, or that parties have performed certain duties which they ought, in justice, to fulfil; and will regulate the enjoyment and transmission of estates and interests accordingly. Thus, where a testator has imperatively directed land to be sold and turned into money, equity will consider that the conversion (as it is termed) has taken place from the instant of the testator's death, and the subsequent devolution of the property will be governed by the rules which control, not real, but personal estate. And so, as it is the duty of a trustee to deal with the trust property for the benefit of the cestui qui trust, a profit made in his own name will be regarded as made for the benefit of the trust estate. This maxim will be found running through the whole system of equity jurisprudence. 45. IX. The next maxim is that between equal equities priority of time will prevail. This is the rule which is applied to determine the order between conflicting equities. If nothing else intervenes to turn the scale, the man who is first in time will be first in right. The maxim is frequently applied in questions which arise under titles acquired through equitable assignments. 46. X. Equity imputes an intention to fulfil an obligation. What is meant by this maxim is that when a person covenants to do an act, and he does that which may either wholly or partially be converted to or towards a completion of the covenant, he shall be presumed to have done it with that intention. In the case of Wilcocks v. Wilcocks, which is a leading authority upon this point, a person covenanted to purchase and to settle lands of a certain value, and afterwards purchased lands of equal or greater value which descended upon his heir, and it was deemed a performance of the covenant. Upon the same principle a purchase in the name of a child will be considered as an advancement and not as a resulting trust for the benefit of the father (the purchaser); and a legacy to a child will be treated as a provision.3 47. XI. Equity acts in personam. One of the ordinary means of enforcing obedience to the decrees of a court of equity is by an attachment against the person of the defendant. Hence, when the parties are within the jurisdiction of a court of chancery, it will not ordinarily hesitate to grant relief, although the property to be ultimately affected by the decree may lie in another forum. Thus the court of chancery in England decreed specific performance of a contract respecting the boundaries of Pennsylvania and Maryland, when colonies, entered into by the proprietaries. But where, in order to the relief sought, it is necessary to deal directly with the land itself, the foreign situation of the property will be a bar to the jurisdiction. Thus, a bill cannot be brought for a partition of land outside of the jurisdiction, for the court cannot issue a commission there." 1 Wilcocks v. Wilcocks, 2 Vern. 558; 2 Lead. Cas. Eq. 345. 2 Post, Part I., chap. on Implied Trusts. 3 Adams's Equity, 102. 4 Penn v. Lord Baltimore, 1 Ves. 444; 2 Lead. Cas. Eq. 767. 5 Smith's Manual of Equity, 30. |