G. W. being ed into ar. himself for to fecure a 8. The leffor of the plaintiff, who was leffee of Lord Abingdon by deed, wherein the truft of the term was declared to be for the benefit of creditors, brought ejectment against the defendant, who claimed title under an agreement entered into by his lordship and his the defendant's father, (the date whereof was prior to the deed of truft), whereby his lordship agreed to let for a certain term of years, if he fhould fo long live, to the faid defendant's father, an estate at a certain rent, into which eftate the faid defendant's father fhould immediately enter; and it was alfo agreed, that leafes with the ufual covenants fhould be made and executed by the parties on a certain day fubfequent; the agreement was unftamped. The plaintiff had a verdict, to fet afide which, and for a new trial, a motion was made; but, upon argument, the rule was difcharged, notwithstanding it was infifted that the leffor of the plaintiff ftood exactly in the place of Lord A., who was a trustee for the defendant, and therefore could not bring an ejectment against his own celui que truft, for the court faid the only cafes where that principle had been adopted was, where the leffor of the plaintiff had been clearly and unequivocally a trustee for the defendant; and it would have been of courfe for the court of Chancery to have decreed a conveyance to him, but the court thought that in the cafe in queftion the demife to the leffor was not a mere voluntary conveyance, but was made to him for the benefit of creditors, and was the fame as if a mortgage had been made to any individual creditor, and he had brought the ejectment. Goodtitle ex dem. Eftwick v. Way, Eaft. 27 G. 3. 1 Term Rep. B. R. 735. 9. R. 7. being feifed of lands, on the 14th April 1761 granted feifed in fee, the fame to M. A. for 999 years, fubject to a provifo for refubject to a demption on payment of 5000l. and intereft at a certain day, mortgage term for which fum was not paid on that day. on that day. On the 16th August 1768 years, enter- M. A., in confideration of the principal and intereft which was ticles to fet- due being paid to her, affigned to R. L. all the premises contle the eftate tained in the deed of 14 April 1761, for the refidue of the faid to the ufe of term of 999 years, in truft as to part of the premises (which was life; then, a manor) for R. J., and to attend the inheritance, and as to the other part in truft for 7. L. By indenture of the 13th December jointure for 1769 R. 7. and R. L. aligned all the premifes in queftion to his wife, e- R. M. for the remainder of the said term of 999 years, in trust his first and for N. S. for fecuring 10,000 /, lent by the latter to R. 7. Under other fons of this laft affignment the leflors of the plaintiff claimed, and in the marriage in, tail male, whofe poffeffion all the title deeds were depofited. There were remainder to two defendants who claimed feparately, one under a mortgage of that part of the premises which confifted of the manor, made by R. J. on the 3d and 4th April 1767; and the other under a charge the mortgage in fee of the reft of the premifes, made alfo by R. J., premifes by, of the date of the 27th and 28th July 1769, and both which dewith 3000l. fendants were in poffeffion of the feveral premises by ejectment for younger brought on their mortgages. On the trial of this caufe a cafe Irainder to himself in fee, with power to deed or will Was the fettlement was attend and was referved for the opinion of the court, Whether the leffors of children. the plaintiff were entitled to recover the premifes contained in the And after two mortgages fet up by the defendants? And, after argument on both fides, the court determined, that if a man be fo abfurd made the as to make a purchase without looking at the title deeds, he muft old term was take the confequence of his own negligence. If he had ufed aligned to ordinary precaution, he must have known that the term was out for G. 1. to standing; and, if he did know it, and neglected to take an affign- othe ment of it, it was enabling the mortgagor to commit a fraud, by freehold and mortgaging the fame eftate again. And therefore became a inheritance. particeps criminis. And per Buller, J.-It is an established rule in Subfequent equity, that a fecond mortgagee, who has the title deeds without notice of any prior incumbrance, fhall be preferred, and this rule ought to be adopted in a court of law: here the fubfequent mortgagee is a purchafer without notice, and as he has taken the title deeds, he has the better title. The poftea was accordingly raising the delivered to the plaintiffs. Goodtitle on feveral demifes Norris and died. H. W. ethers v. Morgan and another, Eaft. 27 G. 3. 1 Term Rep. B. R. the fon and 755 to this G. W. made his will, and this thereby exe. power as to tenant in tail, fuffered a recovery, barred the entail, and declared the ufes to trustees upon truft for the ufe of fuch perfon, and for fuch eitate, as he fhould appoint. He afterwards mortgaged the eftate to his mother, raifing a term of 500 years. During all this time the old term remained outstanding in S. But fome time afterwards H. W. mortgaged the fame premifes to C. and then directed S. the trustee in the affignment of the old term to affign the fame to B. in truft to protect C.'s mortgage. C. had full notice of the marriage-articles, notwithstanding which he took a covenant in the mortgage deed from H. W. that the premises were free from all incumbrances except on indenture of affignment of the old term to B. and the faid term and the maine affignment thereof in the laft affignment mentioned. But it did not appear that C. had any notice of the mortgage made by H. W. to his mother. A bill was filed in Chancery by the mother and the younger children for various purposes, and, int. al. that the mortgage might be paid off; in opposition to which C. infifted that his mortgage ought to be preferred in payment to that of the mortgagor's mother, the legal estate of the prior term being vefted in his truftee, and he being a purchafor by his fecond mortgage without notice of the first, on this principle, that the legal eftate of the term being in a trustee for him, he had both law and equity on his fide; while the mother had only an equity as against the term. The Lord Chancellor (Hardwicke) held, that C. had not the legal eftate of the term in himself, nor had be the best or preferable right to call for that legal eftate, and that he did not take his mortgage clearly and bona fide. Suppofing there had been no affignment of the old term from S. to C.'s trustee, in that cafe it would have been plain the former mortgage to the mother would have had the preference. Wherever the legal estate is standing out, either in a prior incumbrance or in fuch a trustee as against whom the prefent incumbrancer has not the best right to call for the legal eftate, the whole title and confideration is in equity; and then the general maxim must take place, qui prior eft tempore potior eft jure. C. having full notice of the marriage-fettlement before he took his mortgage, the mother had the prior right, even as against C.'s trustee, to call for the legal estate of the old term to protect her jointure; the might, upon equitable grounds, demand it to be affigned to a new truttee for her, and when that was done, the might protect her mortgage by it. This brings the whole to be in equity, and fubjects the cafe to the rule qui prior eft, &c. She might come for an injunction to restrain C.'s trustee from recovering the poffeffion from her by ejectment, and compel C. to redeem the arrears of her annuity, and then he must redeem her entirely. Befides, it appears that he aimed at gaining an unfair advantage in the manner of taking his fecurity; he had full notice of the marriage-lettiement and its contents; he knew thefe to be prior incumbrances; and yet, in contradiction to it, he took a covepant that the premises were free from all incumbrances, in a manner which was plainly intended to conceal that full notice which he had of the marriage-fettlement, and was a badge of an indirect and collufive intention. For which reafons his lordship held, that C. wanted and flood divested of two ingredients, neceffary to entitle himself in equity to the protection of the old term again the mother; that is to fay, a clear bona fides, and the first and best right to call for the legal eftate; and therefore he could only come in in order of time pofterior to the mother's mortgage. Willoughby and others v. Willoughby and others, in Chancery, June 19, 1756, reported in 1 Term Rep. B. R. 763. 10. The leffor of the plaintiff was adminiftrator of W. S., who died in October 1786. The demife was laid in the declaration to commence commence from the 1st March 1787, to hold for seven years. It was proved that W. S. was in his lifetime an under-tenant to the defendant, who was leffee of a term of the premifes in question, and had feveral times paid the defendant's rent to his landlord. To the evidence which the plaintiff brought in support of his title there was a demurrer, and, after argument upon it, the court gave their opinion, that the only inference to be drawn from the evidence was, that W. S. had a tenancy from year to year, fo long as both parties pleafed. As between the original parties, as long as both of them lived, he could not have been difpoffeffed without fix months' notice ending at the expiration of the year. This was a chattel intereft from year to year as long as both parties pleafed; and it is clear that whatever chattel the inteftate had muft veft in his adminiftrator as his legal reprefentative. The intereft of the plaintiff could not in any manner be affected by the length of time stated in the declaration. Doe ex dem. Share v. Porter, Hil. 29 G. 3. 3 Term Rep. B. R. 13. 11. Where copyhold lands were devised to trustees for two purposes, namely, a certain annual charitable ufe, and alfo to permit B. and his children and pofterity to poffefs the premises; but the words of the devife to B. were fuch, that although it were clear that B. and his family were objects of the truft, it was far from being clear in what manner the bequest in their favour was to take effect; but at any rate it could amount to no more than an equitable eftate tail. Such equitable eltate, or whatever other estate B. might take under the devife, could not obftruct trustees who have the clear legal title, from obtaining poffeffion against a perfon claiming under B., notwithstanding the charitable ufe be regularly complied with and executed by fuch perfon. For the rule is, unless in the cafe of a clear truft, the equitable title of the ceftui que truft fhall not be fet up against the legal title of the trustees. If the trufts are not clearly executed in favour of any one, it is fit that the trustees should be in poffeffion. And where the perfon feised of fuch equitable eftate tail in fuch copyhold deviled the fame, fuch eftate tail was not thereby barred; for, though it is true the devife of an equity in a copyhold requires no furrender, yet that is where the devifor has a devifable eftate. The entail muft first be barred; the party muft do fome antecedent act to enable him to devife. Nor is it at all certain that a leafe for a long term, as 2000 years, created by fuch equitable tenant in tail, will be a bar of fuch eftate; but, at all events, if the confideration for fuch term be fo grofsly inadequate as to raise the suspicion of its being obtained by impofition or fraud, it will not prevent the trustees from recovering the poffeffion in an ejectment brought against fuch leffee. Roe an feveral demifes of Éberall and others v. Lowe and others, Trin. 30 G. 3. H. Blackft.. Rep. 446. 12. The leffor of the plaintiff claimed title as leffee for years of 7. P., who had been ceftui que truft under a devise to trustees, in truft for him until he attained the age of 21 years. After he had attained attained that age he leafed to the leffor, who, to prove his title, produced the leafe; and it was objected that, as there appeared no conveyance from the trustees to J. P., the leafe ought to have been made by them. But per Lord Kenyon-There is no reafon why the jury fhould not prefume a conveyance from the trustees upon J. P.'s attaining the age of 21, in pursuance of their trust; it is what they were bound to do, and what a court of equity would have compelled them to have done, if they had refused. And, as to the time, the jury may be directed to prefume a conveyance or furrender in much less than 20 years. England ex dem. Syburn v. Slade, Eaft. 32 G. 3. 4 Term Rep. B. R. 682. 13. A bill was brought for an injunction to stay the defendant's proceedings upon an ejectment for the poffeffion of the eftate, which was mortgaged to him, because he was proceeding in the court of Chancery to foreclofe the equity of redemption. But Lord Hardwicke, C. determined that he was not precluded from bringing an ejectment at law at the fame time. Booth v. Booth, Atkins, 34. (N) Against whom it lies. 9 Viner 340. I. IN cafes of a vacant poffeffion no perfon claiming title will Vide ante, be let in to defend; but he that can first seal a lease upon (H), pl.4. the premises must obtain poffetlion. Bull. Ni. Pri. 95. Efpinale, Ni. Pri. 453. 2. A mortgagee, who had never been in poffeffion or received the rents, has been refufed to be made a defendant. Efpinaffe, Ni. Pri. 453. 2 Crompt. Pract. 173. 3. A judgment in ejectment had been regularly obtained by the plaintiff against the cafual ejector by default, and the landlord of the premises moved to set aside the judgment, because his tenant had not given him notice of his having been ferved with an ejectment. The landlord was an infant, and therefore could not confent to the trial of the question (which was heirship) in an iffue. But, as the relief was on his part prayed against a judgment, which was ftrictly regular, there could be no doubt but that the court might add fuch terms and conditions to fuch relief as were just and equitable, by bringing the real queftion between the plaintiff and him to be tried upon the real merits. And a rule was made that the landlord be made defendant, and that he should upon the trial of the iffue to be joined between the parties, not fet up any fatisfied term or any truft eftate to defeat the leffor of the plaintiff. And that he should admit the seifin of the leffor of the plaintiff. Doe ex dem. Troughton v. Roe, Mich. 7 G. 3. Burr. 1996. 9 Viner 340. The true end and profeffed intention of this act of parliament was to take ence of his continuing always liable to an un certainty of potlethion (from its remaining in the power penfation at order to found an application for relief in equity), and to limit and confine the I. (0) In what Cafes it lies. Y ftatute 4 G. 2. c. 28. . 2. reciting that great inconveniences do frequently happen to leffors and landlords in cafes of re-entry, for non-payment of rent, by reafon of the many niceties that attend re-entries at common law; forafmuch as when a legal re-entry is made, the landlord or leffor must be at the off from the expence, charge, and delay of recovering in eje&ment, before he landlord the can obtain the actual poffeffion of the demifed premises; and it inconveni often happens, that after fuch a re-entry made, the leffor or his affignee, upon one or more bills filed in a court of equity, not only holds out the leffor or landlord by injunction, from recovering the poffeffion, but likewife, pending the faid fuit, do run much more in arrear, without giving any fecurity for the rents due, when the re-entry was made, or which fhall or do afterwards incur; for remedy whereof it is enacted, that in all of the te- cafes between landlord and tenant, from and after the 24th nant to offer day of June 1731, as often as it fhall happen that one-half him a com- year's rent fhall be in arrear, and the landlord or leffor to any time in whom the fame is due, hath right by law to re-enter for the non-payment thereof, fuch landlord or leffor fhall and may, without any formal demand or re-entry, ferve a declaration in ejectment for the recovery of the demifed premifes; or, in cafe the fame cannot legally be ferved, or no tenant be in actual poffeffion of the premises, then to fix the fame upon the door of any demifed tenant to fix meffuage; or, in cafe fuch ejectment fhall not be for the recovery of any meffuage, then upon fome notorious place of the land, tenement, or hereditaments, comprifed in fuch declaration in ejectment; and fuch affixing fhall be legal fervice thereof; which ed for his fervice or affixing fuch declaration in ejectment shall stand in doing this, or elfe that the place and ftead of a demand and re-entry; and in cafe of judgthe landlord ment against the cafual ejector, or nonsuit for not confeffing leafe, entry, and oufter, it shall be made appear to the court where the hold the de- faid fuit is depending, by affidavit; or be proved upon the trial, in cafe the defendant appears, that half a year's rent was due before the faid declaration was ferved, and that no fufficient diftrefs was to be found on the demifed premifes countervailing the arrears then due, and that the leffor or leffors in ejectment had power to re-enter; then and in every such case the leffor or leffors in ejectment shall recover judgment and execution, in the fame dem. Hitch- manner as if the rent in arrear had been legally demanded, and a ings and an re-entry made; and, in cafe the leffee or leffees, his, her, or other v. their affignee or affignees, or other perfon or perfons claiming or Burr 619. deriving under the faid leafes, fhall permit and fuffer judgment to be had and recovered on fuch ejectment, and execution to be executed thereon, without paying the rent and arrears, together will of the with full cofts, and without filing any bill or bills for relief in original lefequity within six calendar months after fuch execution executed; calendar months af ter execu tion execut fhould from thenceforth mised pre miles difcharged from the leafe. Per Lord Mans field, C. J. in Doe ex Lewis, The truftees and devifees under the then |