SECT. I. Of the Rule, Qui prior est tempore potior est jure. II. Of the Principle, on which the Exceptions to that Rule are grounded. III. Of several of the Exceptions themselves. IV. Of certain Cases, in which an Incumbrancer, although he has the Law on his side, may not have an equal Equity. V. Of other Cases, in which an Incumbrancer, although he has the Law on his side, may not have any Equity. VI. Of two Cases, where a Mortgagee of the Legal Estate may not come within the principle of Tacking, and where, in consequence, a subsequent Incumbrance acquired by him may not be entitled to Priority before an Intervening Incumbrance. OF THE RULE, QUI PRIOR EST TEMPORE POTIOR EST JURE. THE rule, Qui prior est tempore potior est jure, applied to successive incumbrancers of the same land, is applicable to the three cases,-1. When the first incumbrancer is a mortgagee, or creditor by statute, judgment, or recognizance, seised or possessed of the legal estate: 2. When one of several incumbrancers has the better right to call for the legal estate: 3. When, of several incumbrancers, no one has the better right to call for the legal estate. In the first case, the order of payment is, first, to the mortgagee, or creditor, seised or possessed of the legal estate; and afterwards to the other incumbrancers by mortgage, statute, judgment, and recognizance, in the order in which, in time, their incumbrances stand.(b) In the second case, the order of payment is, first to the incumbrancer who has the better right to call for the legal estate; and afterwards to the other incumbrancers by mortgage, statute, judgment, and recognizance, in the order in which, in time, their incumbrances stand. (c) In the third case, the only order of payment is, to all the incumbrancers by mortgage, statute, judgment, and recognizance, in the order in which, in time, their incumbrances stand. (d) The rule mentioned applies, it may here be noticed, to a [ *398 ] fourth case; where the first incumbrancer is a judgment creditor, who is also a mortgagee later than another judgment creditor intervening between the first judgment and the mortgage. In a case of (b) Turner v. Richmond, 2 Vern. 81; Earl of Bristol v. Hungerford, ib. 524; Symmes v. Symonds, 4 Bro. P. C. ed. Toml. 328; Brace v. Duchess of Marlborough, 2 P. W. 495, seventh point; Barnett v. Weston, 12 Ves. 130; Baker v. Harris, 16 Ves. 397. (c) Earl of Pomfret v. Lord Windsor, 2 Ves. 472, 486; Willoughby v. Willoughby, 1 Durn. & E. 763, 768, 773. See also Clarke v. Abbot, Barn. Ch. Rep. 457, 2 Eq. (d) Brace v. Duchess of Marlborough, 2 P. W. 495, seventh point; Charlton v. Low, 3 P. W. 328; Earl of Pomfret v. Lord Windsor, 2 Ves. 486; Willoughby, 1 Durn. & E. 773, 774, 2 Ves. 684; Beckett v. Cordley, 1 Bro. C. C. 353, 358; Frere v. Moore, 8 Price, 475. this kind, where the mortgage was taken, without notice of the second judgment, and the second judgment creditor filed a bill, praying a sale of the estate, Lord Hardwicke refused to decree a sale, unless the plaintiff consented to pay off, before his own judgment, both the first judgment and the mortgage. If he did not submit to these terms, he was left to take his remedy at law, by extending the estate. (e), SECTION II. OF THE PRINCIPLE, ON WHICH THE EXCEPTIONS TO THE RULE OF PRIORITY ARE GROUNDED. To the rule, Qui prior est tempore potior est jure, applied to successive incumbrancers of the same land, a Court of Equity allows many exceptions; grounded on the principle, that where one incumbrancer is armed with an equity only, and another with an equal equity, and also the law, the Court will leave the parties to combat at law, and will not take from the latter incumbrancer any advantage, which the law may give him.(f) This principle, applied to particular cases, will be exemplified by the several exceptions themselves, which it is intended to notice in the third section of this Chapter; and by the cases, afterwards to be considered, in which an incumbrancer, although he has the law on his side, may not have an equal, or any equity. It may, therefore, be proper to make in this place some general observations only. The principle mentioned has the effect to give to a later incumbrance a priority before one, that, in order of time, stands before that incumbrance. But to come [ *399 ] within such principle, either the creditor himself, or a trustee for him, must be seised or possessed of the legal estate,(g) or have the best right to call for the legal estate; (h) which estate here meant is, not a legal estate as distinguished from one that is equitable, but the estate which, at law, is in the seisin or possession of a tenant, that is, one who at law, is entitled to the present possession of the land, and who may, if necessary, now obtain that possession by ejectment; (2) or one who at law is entitled to receive from a tenant of the land a present yearly rent, or other service, for it.(j) The former kind of tenant may be a person entitled to the present possession of land, extended() under (e) Smithson v. Thompson, I Atk. 520. (f) Hardr. 318; 2 Ventr. 338; 2 P. W. 491, 495; 2 Ves. 486; 1 Durn. & E. 767, 768. (g) Marsh v. Lee, 2 Ventr. 337; Brace v. Duchess of Marlborough, 2 P. W. 495, seventh point; Clarke v. Abbot, Barn. Ch. Rep. 457, 461, 462, 2 Eq. Cas. Abr. 606, Ca. 41. (h) Wilkes v. Boddington, 2 Vern. 599; Earl of Pomfret v. Lord Windsor, 2 Ves. 486; Willoughby v. Willoughby, 1 Durn. & E. 763, 768, 773. (i) Willoughby v. Willoughby, 1 Durn. & E. 767; Goodtitle v. Morgan, ib. 755; Doe v. Wharton, 8 Durn. & E. 2. (j) Dighton v. Greenvil, 2 Ventr. 328; Cambell's case, 1 Rol. Abr. 894; Harrington v. Garroway, 2 Rol. Abr. 472. (k) See much learning on the nature of tenancy under an extent, in Dighton v. Greenvil, 2 Ventr. 321. a statute,(7) judgment, (m) or recognizance; (n) or entitled to the present possession, under a conveyance or assignment from a first mortgagee; (0) and such tenant is, it is well known, very often a person possessed of a satisfied term of years. (p) And the latter kind of tenant mentioned, or one who at law is entitled to receive from a tenant a present yearly rent, or other service, may be a tenant of land extended on a statute or judgment, and now in the possession of a tenant entitled to the present possession of it.(q) To come within the same principle, it is also essential that the creditor, who claims the priority, had not, at the time when he advanced his money, notice of the earlier incumbrance. If he had not [ *400 ] then notice, he is allowed to gain priority by afterwards acquiring the legal estate, although with notice of the former incumbrance.(r) And this acquisition may be made even pendente lite, that is, pending a suit in equity, the end of which is to redeem a mortgage, or to pay creditors, or to settle their priorities. But here a distinction is to be noticed. The legal estate is allowed to be got in at any time before a decree made to pay creditors, or to settle their priorities; and accordingly if obtained before that decree, such legal estate may confer a priority;(s) but the acquiring of the legal estate, after such decree made, is not permitted to give any priority to the creditor, who has so afterwards obtained that estate.(t) It remains to be observed, that, to come within the principle which has been mentioned, the creditor must have taken his security clearly bona fide;(u) and must have not only the law on his side, but also an equal(v) equity.(w) A mortgagee is a purchaser pro tanto,(x) or to the extent of his claim against the property pledged to him. The law, therefore, which, on the protection afforded by the legal estate, applies to a purchaser, extends also to a mortgagee. He who purchases land bona fide, for a valuable consideration, and without notice of a former purchase of, or incumbrance on it, and is either himself, or by a trustee for him, seised or possessed of the legal estate, that is, the estate of a tenant of the [ *401 ] land, or one who at law is entitled to the present possession, (1) Hedworth v. Primate, Hardr. 318; Stanton v. Sadler, 2 Vern. 30. (m) Higgon v. Syddal, 1 Ch. Cas. 149, (n) Hacket v. Wakefield, Hardr. 172. (0) Marsh v. Lee, 2 Ventr. 337; Cockes v. Sherman, 2 Freem. 13. (þ) Willoughby v. Willoughby, 1 Durn. & E. 767; Goodtitle v. Morgan, ib. 755. (q) Bro. Abr. tit. Stat. Merch. pl. 44; 1 Rol. Abr. 894, B. pl. 5; 2 Rol. Abr. 472, P. pl. 11; 2 Vent. 328. (r) Marsh v. Lee, 2 Ventr. 337; Cockes v. Sherman, 2 Freem. 14; Brace v. Duchess of Marlborough, 2 P. W. 495, sixth point; Wortley v. Birkhead, 2 Ves. 574; Matthews v. Cartwright, 2 Atk. 347; Belchier v. Butler, 1 Eden, 529, 530. (8) March v. Lee, 1 Ch. Cas. 162, 2 Ventr. 337; Hawkins v. Taylor, 2 Vern. 29; Brace v. Duchess of Marlborough, 2 P. W. 491, first point; Wortley v. Birkhead, 2 Ves. 574; Belchier v. Butler, or Renforth, 1 Eden, 523, 5 Bro. P. C. ed. Toml. 292; Robinson v. Davison, 1 Bro. C. C. 63; Ex parte Knott, 11 Ves. 719. These cases seem to verify the proverb, "One shall beat the bush, and another have the bird." Plowd. 57. (t) Earl of Bristol v. Hungerford, 2 Vern. 525; Wortley v. Birkhead, 2 Ves. 574; Ex parte Knott, 11 Ves. 619; Sumner v. Kelly, 2 Sch. & Lef. 398. (u) Cockes v. Sherman, 2 Freem. 13; Willoughby v. Willoughby, 1 Durn. & E. 767, 768, 774, 775. (v) Melior est conditio possidentis, 2 Inst. 391. In æquali jure, melior est conditio possidentis, 2 Fonbl. Treat. Eq. 5th ed. 302. (w) Hedworth v. Primate, Hardr. 318= Marsh v. Lee, 2 Ventr. 337; Hagshaw v. Yates, 1 Stra. 240. (x) 2 P. W. 491; 2 Ves. 684; 1 Durn & E. 767, 770; 5 Ves. 134. and who may, if necessary, now obtain that possession by ejectment, (y) or one who at law is entitled to receive from a tenant of the land a present yearly rent, or other service, for it,(z) seems to be, through that legal estate, and while in possession of and entitled to it, fully protected at law against every former purchase of, or incumbrance on, the property so bought by him. And because he is a purchaser, bona fide, and for a valuable consideration, if also he had not before, or at the time when, he paid his money, and the vendor executed the conveyance to him, (a) notice of such former purchase or incumbrance, and so he has the law on his side, and also an equal equity, a Court of Equity will not disturb his security at law, (b) and in particular, it may be mentioned, will not oblige him to deliver up his title deeds, or discover his title. (c) A purchaser bona fide, for a valuable consideration, and without notice, is so much favoured in equity, that cases are found in which the Court has refused to oblige him to deliver up deeds, or discover his title, although he got possession of the deeds for a reward, or by trick, or other undue means; (d) as in the instance of a man, who "got a ladder, and fetched a deed out of a window."(e) The language of the reports is, [ *402 ] that where a purchaser has got a deed into his hands, "whether he doth it by power or otherwise, if he had no notice of it, when he made the purchase, he shall not be bound to discover it;" and that a purchaser, "having honestly paid his money without notice, may use what means he can to fortify his title."(f) The legal estate held under a statute may protect a purchaser against a statute,(g) or judgment, (h) or mortgage,(i) or settlement for valuable consideration; (j) held under a mortgage may protect him against a judgment;(k) held under an assignment of a term of years mortgaged may protect him against a second mortgage of the term;() and held under (y) Willoughby v. Willoughby, 1 Durn. & E. 767; Goodtitle v. Morgan, ib. 755; Doe v. Wharton, 8 Durn. & E. 2. (z) Dighton v. Greenvil, 2 Ventr. 328; Cambell's case, 1 Rol. Abr. 894; Harrington v. Garroway, 2 Rol. Abr. 472. (a) More v. Mayhow, 1 Ch. Cas. 34, 2 Freem. 175; Meynell v. Garraway, Nels. 63; Jones v. Stanley, 2 Eq. Cas. Abr. 685; Tourville v. Naish, 3 P. W. 307; Wigg v. Wigg, 1 Atk. 382, 384, 1 West Cas. T. Hardw. 680; Fitzgerald v. Burke, 2 Atk. 397; Story v. Lord Windsor, ib. 630; Hardingham v. Nicholls, 3 Atk. 304. (b) Hedworth v. Primate, Hardr. 318; Harding v. Hardrett, Cas. T. Finch, 9; Bassett v. Nosworthy, ib. 102, cited Prec. Ch. 249, and 2 Ves. jun. 457; Meynell v. Garraway, Nels. 63; Culpeper's case, cited 2 Freem. 124; Bishop of Worcester v. Parker, 2 Vern. 255; Lowther v. Carleton, Cas. T. Talb. 187; Hagshaw v. Yates, 1 Stra. 240; Jerrard v. Saunders, 1 Ves. jun. 454. See Duke of Albemarle v. Viscountess Purbeck, Cas. T. Finch, 252. (c) Sherly v. Fagg, 1 Ch. Cas. 68; Higgon v. Syddal, ib. 149; Anon. 2 Ch. Cas. 4; Perrat v. Ballard, ib. 73; Bassett v. Nos worthy, Cas. T. Finch, 102; Everenden v. Vanacker, ib. 255; Day v. Arundel, Hardr. 510; Millard's case, 2 Freem. 43; Rogers v. Seale, ib. 84; Anon. ib. 275; Hall v. Atkinson, 1 Eq. Cas. Abr. 333, Ca. 4, 2 Vern. 463; Williams v. Lane, 8 Bro. P. C. ed. Toml. Append. 291; Senhouse v. Earl, 2 Ves. 450; Aston v. Aston, 3 Atk. 302; Siddon v. Charnells, Bunb. 298; Sweet v. Southcote, 2 Bro. C. C. 66, 2 Dick. 671; Jerrard v. Saunders, 1 Ves. jun. 454. (d) Sherly v. Fagg, 1 Ch. Cas. 68; Sir John Fagg's case, cited 2 Ch. Cas. 23, 2 Freem. 123, 2 Vern. 159, and 2 Ves. jun. 457; Burnel v. Ellis, and Harcourt Knowel, cited 2 Vern. 159. (e) Anon. cited 2 Freem. 123. V. (f) Sanders v. Deligne, 2 Freem. 123. (g) Anon. 2 Ch. Cas. 208; Jefferson v. Dawson, 1 Ch. Cas. 267, S. C., misprinted. (h) Churchill v. Grove, I Ch. Cas. 35, 2 Freem. 176, Nels. 89. (i) Ibid. (j) Hedworth v. Primate, Hardr. 318,` (k) See Greswold v. Marsham, 2 Ch. Cas. 170, cited Amb. 154, and 3 Mer. 224, (1) Meynell v. Garraway, Nels, 63. his purchase deed may protect him against marriage articles.(m) A purchaser is, also, so far protected against a judgment, that a Court of Equity will not oblige him to discover what lands may be liable to the judgment.(n) Not only a person who is seised or possessed of the legal estate, but also, it is said, he who has the best right to call for that estate, may shelter himself under the plea of purchase for valuable consideration, and without notice. (0) A purchaser bond fide, for valuable consideration, and without notice, and who claims under a conveyance, as distinguished from articles only, although he may not be seised or possessed of the legal estate, yet, if he is in possession of the land, is so far protected in equity, that if, to a claim against him, he pleads his purchase, the Court will not oblige him to deliver up his title deeds, or discover his title; and consequently the [ *403 ] purchaser may to this extent be protected against a settlement, under which it may appear the legal estate is vested in the party, who claims against him. (p) Lord Loughborough created a distinction between the cases, where the purchaser is, and where he is not, in possession of the land. In Strode v. Blackburne the purchaser, a mortgagee in fee, was not in possession of the land, and to a bill filed against her by the owner in possession, praying a delivery of the title deeds, she pleaded her purchase. Lord Loughborough ordered this plea to stand for an answer, with liberty to except; and the design of this order seems to have been, to oblige the defendant to discover and deliver up deeds, which might benefit the plaintiff, and could not injure the defendant herself.(g) This case appears, however, to be overruled by a directly contrary decision made by Lord Eldon in Wallwyn v. Lee. The purchaser, a mortgagee, was not in possession of the land, and to a bill filed against him by the owner in possession, praying a delivery of the title deeds, he pleaded his purchase; and this plea was by Lord Eldon allowed.(r) If a purchaser claims under articles only, as distinguished from a conveyance, and therefore is seised or possessed of an equitable estate only, and not of the legal estate, it appears he cannot, although he is in possession of the land, defend himself in equity by the plea of purchase without notice.(s) It is clear that a purchaser, who at the time he pays his money, or when the conveyance is executed, has notice of a trust, is bound by that trust. (t) But if a purchaser, who at the time he *paid his money, and the conveyance was executed, had not notice of [ *404 ] (m) Bullock v. Sadlier, Amb. 764. 171. (p) Sherly v. Fagg, 1 Ch. Cas. 68; Burlace v. Cooke, 2 Freem. 24. See also Parker v. Blythmore, Prec. Ch. 58, 2 Eq. Cas. Abr. 79; Kelsall v. Bennett, 1 Atk. 522, 1 West Cas. T. Hardw. 22; Warrick v. Warrick, 3 Atk. 291, 292; Siddon v. Charnells, Bunb. 298; Jerrard v. Saunders, 2 Ves. jun. 454; Strode v. Blackburne, 3 Ves. 225; Wallwyn v. Lee, 9 Ves. 24; Pen nington v. Beechey, 2 Sim. & St. 282; and (r) 9 Ves. 24. (s) Fitzgerald v. Fauconbridge, or Fauconberge, Fitzg. 207, 2 Eq. Cas. Abr. 677, Ca. 3, 6 Bro. P. C. ed. Toml. 295, cited 3 Atk. 377, 378; Brandlyn v. Ord, 1 Atk. 571, 1 West Cas. T. Hardw. 512; Hart v. Middlehurst, 3 Atk. 371. (t) More v. Mayhow, 1 Ch. Cas. 34, 2 Freem. 175; Bovy v. Smith, 2 Ch. Cas. 124, 1 Vern. 144; Black v. Cock, Cas. T. |