Page:Harvard Law Review Volume 1.djvu/20

From Wikisource
Jump to: navigation, search
This page has been validated.

the principle herein advanced. Several of them, however, must be supported upon this principle, or else be pronounced erroneous. In Sturge v. Starr,[1] A, a cestui que trust, was induced by the fraud of B to sell her trust to C, a purchaser for value, without notice of the fraud. C was protected in his purchase. In Lane v. Jackson,[2] B, the owner of an equity of redemption, subject to an equity in favor of A, sold the equity of redemption to C, an innocent purchaser. A was not permitted to enforce his equity against C. Penny v. Watts[3] was a similar case, with a similar decision. To overrule these cases would be a misfortune.

On the other hand, in Re Vernon,[4] B, who held an equity of redemption in trust for A, sold it to C. The decision was in A’s favor, on the ground of priority in time. In the court below, however, Bacon, V.C., found that C had notice of the trust, and the Court of Appeal disclaimed any dissent from this finding. In Cave v. Mackenzie,[5] an agent, acting for an undisclosed principal, contracted in his own name for the purchase of an estate, and then sold his right to call for a conveyance. The purchaser was deprived of the benefit of his purchase. In Daubeny v. Cockburn,[6] B, having a power to appoint a trust-fund to any of his children, which fund, in default of appointment, was to go to A, appointed the fund fraudulently to his daughter, M, in order to secure a personal advantage. M transferred the fund to C, an innocent purchaser. C was not permitted to keep the fund. Decisions like these, it is submitted, are powerful arguments against the doctrine of which they are a necessary consequence.

Ⅲ. There were formerly two classes of cases in which a purchaser who had not acquired a right of property, either legal or equitable, was, nevertheless, allowed to plead purchase for value as a bar to the jurisdiction of a court of equity, on the ground that the plaintiff was seeking to deprive him of a common-law right, acquired as an incident of his purchase. One of these rights was the right of a defendant to refuse to testify in a court of common law. Bills for discovery against a purchaser for value were invariably dismissed, equity declining to strip the defendant of his common-law advantage.[7] A defendant had no right, on the


  1. 2 M. & K. 195.
  2. 20 Beav. 535.
  3. 2 DeG. & Sm. 501.
  4. 33 Ch. Div. 402; 32 Ch. D. 165.
  5. 46 L. J. Ch.
  6. 1 Mer. 626.
  7. Bassett v. Nosworthy, Finch, 102; Hoare v. Parker, 1 Bro. C. C. 578; Gomm v. Parrott, 3 C. B. n. s., 47.