Page:Harvard Law Review Volume 1.djvu/21

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other hand, to refuse to give evidence to be used in a court of equity. Accordingly, if a defendant failed to demur or plead to a bill for relief, but answered, he was bound to answer fully, although he were a purchaser for value without notice.[1]

The other right, of which a purchaser for value without notice could not be deprived, was the right to set up an outstanding satisfied term as a bar to an action of ejectment. It was not inequitable for him to insist upon an advantage which the policy of the law gave him, and accordingly purchase for value was a sufficient ground for dismissing a bill to restrain the defendant from setting up the term.[2] Both of these rights were accidental, and, with the change of the policy of the law, have ceased to exist, a defendant having been obliged to testify at law since 1851, and satisfied terms having been virtually abolished by the Satisfied Terms Act.

Ⅳ.Except in the cases mentioned in the preceding three sections a defendant can derive no advantage from the circumstance that he is a purchaser for value without notice. This will appear by an enumeration of the different classes of bills which have been sustained against such a purchaser. Bills of foreclosure, whether by a legal[3] or equitable[4] mortgagee; bills for partition;[5] for an account of tithes;[6] for the assignment of dower;[7] for the surrender of possession of chattels;[8] to have a paid judgment satisfied of record;[9] for the removal of a cloud upon a title;[10] for the cancellation of a void instrument;[11] for the perpetuation of testimony.[12] In none of the cases just mentioned was a court of

  1. Lancaster v. Evors, 1 Phillips, 349, 352; Emmerson v. Ind., 33 Ch. Div. 323, 331; Langdell, Eq. Pl. (2 ed.), § 194.
  2. Goleborn v. Alcock, 2 Sim. 552; Langdell, Eq. Pl. (2 ed.), § 189. Mr. Langdell makes it clear that a bill to restrain the setting up of an outstanding term is not a bill belonging to the auxiliary jurisdiction. But, if the general principle of this essay is sound, the success of the defendant does not depend upon the nature of the jurisdiction invoked, but upon the possession of a right which the plaintiff seeks to take from him.
  3. Finch v. Shaw, 5 H. L. C. 905.
  4. Frazer v. Jones, 5 Hare, 475, 172 J. Ch. 353.
  5. Snellgrove v. Snellgrove, 4 Dess. 274; Donald v. McCord, Rice Eq. 330. But see contra, Lyne v. Lyne, 21 Beav. 318.
  6. Collins v. Archer, 1 Russ & My. 284.
  7. Williams v. Lambe, 3 Bro. C. C. 264
  8. Jones v. Zollicoffer, 2 Tayl. 212; Brown v. Wood, 6 Rich. Eq. 155.
  9. Traphagen v. Lyon, 38 N. J. Eq. 613.
  10. U.S. v. Southern Co., 18 Fed. Rep. 273; Gray v. Jones, 14 Fed. Rep. 83.
  11. Esdaile v. Lanauze, 1 Y. & C. Ex. 394; Vorley v. Cooke, 1 Giff. 230; Peabody v. Fenton, 3 Barb. Ch. 451 (semble).
  12. Dursley v. Berkeley, 6 Ves. 251, 263–4, semble per Lord Eldon. But see contra, Jerrard v. Saunders, 2 Ves., Jr. 454, 458, per Lord Loughborough.