Appeal. 1903. the possession of lands, is disseised or ousted, or having a right to the possession is kept out of it; in which case he may peaceably make an entry upon the lands or bring an action to recover possession": Carson's Real Property Statutes, 367; Rose on Real STEWART. Actions, 79; 1 Real Prop. Rep. 493. ANTRIM LAND, &C., Co. v. Hodgens v. O'Donoghue (1) cannot be relied on as an authority in favour of the defendants, as the case does not appear to have been properly argued, and the order setting aside the judgment may have been based on the slip made by the defendant. In Feehan v. Mandeville (2), Lord O'Brien says that the plaintiff had neither a legal nor an equitable title. Allen v. Woods (3) is not a case between mortgagee and mortgagor; and the Court could not have given the relief asked, without having the person in whom the legal estate was vested before the Court. Further, Smith, L.J., in his judgment, says :-" It does not appear in whom the equitable title is vested." The Court must deal with the interests of the parties before it: Order XVI., R. 11; and in order to deal with the matter in controversy in this action so far as regards the rights and interests of the parties before the Court, the presence of the person in whom the legal estate is vested is unnecessary. Bartley (with him Henry, K.C.), for the respondents: The defendants are entitled to judgment, inasmuch as the legal estate is outstanding in the Land Commission, who must be made parties before the plaintiffs can obtain judgment. The question as to whether the defendants are estopped from raising this point depends entirely on the construction of the deed of mortgage. No estoppel arises by a deed on the face of which the truth appears : Doe v. Scarborough (4). Here the prior mortgage to the Land Commission is stated in the mortgage to the plaintiffs. The grant as beneficial owners creates no estoppel, nor do ambiguous recitals: Heath v. Crealock (5); General Finance Co. v. Liberator Permanent Benefit Building Society (6). There being no estoppel, the case is governed by Hodgens v. O'Donoghue (1). (1) 28 Ir. L. T. R. 98. (2) 28 L. R. Ir. 90. (3) 68 L. T. 143. (4) 3 A. & E. 2. 1903. ANTRIM Co. The suit is defective for want of parties; and the legal estate Appeal. must be before the Court in order to obtain relief: Wylie, p. 272, 476; Annual Practice for 1903, p. 407. If a person LAND, &c., having an equitable title seeks to recover possession of land, he must make the owner of the legal estate a party to the action: Allen v. Woods (1). If a prior incumbrancer refuses to join as plaintiff, he can be made a defendant. This is not a case in which temporary bars should be waived. A plaintiff moving to waive temporary bars, in the case of a mortgage, must show that the mortgage debt has been paid off: Eager v. Maunsell (2); and there is no case of the temporary bar being removed where there was money due on the mortgage: Right v. Bucknell (3); Blennerhassett v. Day (4). PALLES, C.B.:— v. STEWART. It May 6. I am of opinion that this appeal ought to be allowed. is brought from an order of the King's Bench Division which changed a verdict for the plaintiffs, directed by Kenny, J., at the trial, into one for the defendants. The question as to the effect of the Judicature Act, on which our judgment must depend, although discussed before the King's Bench, is not referred to in the judgments below, and, therefore, we have not the advantage of knowing the view taken of it by the Judges there. As to the question upon which the decision there was based, viz. the proposition that, as the law stood before the Judicature Act, a mortgagor, defendant in an ejectment by a second mortgagee under a mortgage which recited the prior one, was not estopped from relying as a defence upon the legal estate being outstanding, I agree with the view of the King's Bench; and the only reason why I refrain from discussing it at length is that, having regard to the opinion I have formed upon the other question, it does not arise. The question then upon which the decision of the appeal must rest is one which, having regard to the expected legislation as to land purchase, is of vital moment to purchasing tenants in Ireland, because if the view put forward by Mr. Bartley is right, the sale out (1) 68 L. T. 143. (2) I. R. 1 C. L. 159, 162. (3) 2 B. & Ad. 278. Appeal. 1903. ANTRIM LAND, &C., Co. v. STEWART. Palles, C.B. of Court by mortgagees of estates purchased through the Land Commission would, so long as any sum remained due on the Government advance, be attended with extreme difficulty, if indeed it would not be practically impossible. Consequently a farm so purchased would for this long period hardly be available as a source of credit. In my opinion this view is not correct. I hold that on the plain construction of the Judicature Act the plaintiff here is, by virtue of his equitable title, entitled to judgment in this action of ejectment, and is so entitled although the Land Commission, in whom the legal estate is, is not before the Court. It is a mistake to say that the King's Bench Division is a Common Law Court. "The Court," to use the words of Lord Cairns in Pugh v. Heath (1), "is now not a Court of law, or a Court of Equity, it is a Court of Complete Jurisdiction, and if there were a variance between what, before the Judicature Act, a Court of law and a Court of Equity would have done, the rule of the Court of Equity must now prevail." Where the plaintiff claims to be entitled to any right-such as here, the right of possession of land-by virtue of an equitable estate, the High Court, whatever may be the Division of it in which the suit may happen to be, must, so long as the suit remains in the Division, give the same relief as ought to have been given by the Court of Chancery in a suit properly instituted for the like purpose before the Act. This is one of the broadest of the principles which are the bases of the Judicature Act, and we cannot allow it to be frittered away by small technicalities, which it was one of the objects of the Act to extinguish. From this principle results that which Sir George Jessel (whose loss is greatly to be deplored by all who desire that a wide and liberal interpretation shall be given to the Act), in The General Finance Co. v. Liberator Benefit Building Society (2), treats as settled law that no action of ejectment can be defeated for the want of the legal estate where the plaintiff has a title to the possession. To my mind that proposition is absolutely incontestable. We have been referred to Allen v. Woods (3), in which Lindley, L.J., held that in the peculiar circumstances of the case before him the person who had the legal estate should have been a party to the (1) 7 A. C. 237. (2) 10 Ch. D. 15, 24. (3) 68 L. T. 143. 1903. ANTRIM LAND, &C., Co. Palles, C.B. suit, and in which he refused relief in his absence. The observa- Appeal. tions of that very learned Judge, which of course must be taken secundum subjectam materiam, seem to have been erroneously incorporated in some of the later text-books, and there treated as laying down the general proposition that no one who claims an equitable STEWART. estate can have any relief unless the legal estate is before the Court. The learned Lord Justice could not have meant to enunciate, and, as I read his judgment, did not in fact enunciate, any such general proposition. The case was one in which the plaintiff could not have succeeded unless direct relief had been given against the absent person. It was essential to that success that such person should have been a trustee for the plaintiff, and as he was not an express trustee, or a person who could be deemed a trustee otherwise than through the judgment of the Court, it was a condition precedent to giving any relief to the plaintiff that the judgment should declare him a trustee-a judgment which it was impossible to give when he was not a party. I therefore pass by that case, and come to the facts of the present one. It is impossible to contend that the Land Commission are entitled, under the conveyance to them, to go into possession, unless and until default has been made in payment of an instalment. Mr. Bartley referred to cases in which mortgagees were held entitled at law to go into possession before default. But the question discussed in those cases was whether the words of the particular mortgage there under consideration had the precision necessary to amount to a demise of the mortgaged premises by the mortgagee to the mortgagor until default. Words operating by way of covenant only were not at law sufficient for that purpose, no matter how clear might have been the intention: Doe v. Lightfoot (1); although I think it clear that if the intention that the mortgagor should retain possession till default were manifest on the face of the mortgage, the mortgagee, if he tried to enter before default, would have been restrained by a Court of Equity from so doing. If that be so in the case of an ordinary mortgage, a fortiori is it in a case like the present, where the mortgage is to a body like the Land Commission, created by statute for the purpose of carrying out the purchase provisions of a series of Acts, (1) 8 M. & W. 564. 1903. Appeal. the whole object of which would be defeated if the tenant-purchaser's possession could be interfered with so long as he performed his contract with the State. ANTRIM LAND, &C., Co. These Acts were passed for the benefit of occupying tenants, with the object of continuing them in their occupation, not as tenants but as fee-simple proprietors, and as ancillary to this object of inducing them to purchase the fee-simple of their holdings by making them advances of money repayable by instalments. The deed to the Land Commission is prepared not inaptly to carry out the intention of the Acts, but even had it not been, I should not have had any hesitation in holding that, before the Judicature Act, a Court of Equity would at once have restrained the Land Commission in the almost impossible event of their attempting to use their legal estate to dispossess a purchaser before default-a use which would have been in defiance of the plain terms of the Acts. If that is so, what is the condition of the parties here? The legal estate is vested in the Land Commission, whose right to punctual payment of the instalments is superior to that of all the parties here. Then, subject to that right, the two parties here are, first, Houston (who is represented by the plaintiffs), a purchaser under a power of sale in the mortgage, who claims the possession under his contract of sale (a contract admittedly binding on the defendant, the mortgagor); and, secondly, the mortgagor himself, who resists the right to possession of the plaintiff, a person plainly entitled to that possession not only against him, but against everyone, including the Land Commission. Is it possible to contend that it is not inequitable that the mortgagor should rely on that legal estate to prejudice the title conferred on the purchaser through his own grant? I hold that, even had there not been a purchaser, the second mortgagees, the Antrim Land Company, could recover in this ejectment. But here there is a purchaser, and his right is not to an account of the sum due on the mortgage, or to a receiver, or to a sale. His contract is one of purchase. It is one which is capable of being, and which he is entitled to have, specifically performed, and of that specific performance possession is part and parcel. It follows that the plaintiffs are entitled to the possession; and, in the words of Sir George |