Page:Harvard Law Review Volume 1.djvu/22

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equity called upon to deprive the defendant of any right of property. In all of them the right of property was in the plaintiff, who asked only for that assistance which equity regularly gives to owners of property.

In Attorney-General v. Wilkins[1] a plea of purchase for value was allowed to defeat a bill for the recovery of a rent. But this case would, doubtless, not be followed. An exception existed in the case of a bill by the legal owner of an estate for the surrender of the title-deeds. Wallwyn v. Lee.[2] This case was decided under the influence of the old view that equity would give no assistance against an innocent purchaser. And it would certainly have been a case of great hardship to the defendant if the decision had been adverse to him. For, it is highly probable, the plaintiff resorted to equity from inability to prove his title at law, and if he had succeeded he would, by an indirection, have got the evidence which he could not have obtained by a bill for discovery. The refusal of the court in several cases[3] to compel the surrender of title-deeds in foreclosure suits brought by a legal mortgagee after the plaintiff had proved his title is cause for surprise. But these cases have now lost their force, since, under the Judicature Act, the plaintiff gets in the foreclosure suit what formerly he would obtain only by a separate action at law.[4]

Ⅴ.In cases where the rule of priority in time would otherwise determine the rights of adverse equitable claimants, it sometimes happens that the later incumbrancer subsequently acquires the outstanding legal title. Under what circumstance can he profit by the title so obtained? By the old law, if he gave value for his equity without notice of the prior equity, he was permitted to use the subsequently acquired title as tabula in naufragio under all circumstances, even though he gave nothing for the legal title, or obtained it with notice of the prior equity. This was an extreme application of the old rule, that equity would not exercise its jurisdiction against an honest purchaser. It was, however, long since decided that a later incumbrancer could derive no advantage from

  1. 17 Beav. 285.
  2. 9 Ves. 24.
  3. Head v. Egerton, 3 P. Wms. 280; Kendall v. Hulls, 11 Jur. 864; Hunt v. Elmes, 2 D., F., & J. 578; Heath v. Crealock, 10 Ch. 22; Waldy v. Gray, 20 Eq. 238.
  4. Cooper v. Vesey, 20 Ch. Div. 611; Manners v. Mew, 29 Ch. D. 725.