equity. If a different rule prevailed, the consequence (*)would be, that the estate could never be sold by decree, till the account was taken of all the debts; because, before that account was taken, it could not appear who were to join in the conveyance, what was the number, and in what proportions they were beneficially entitled ; but it is the constant practice to sell the estate in the first instance; of course the title can be made only by the trustees for sale, without calling in the parties who are presumptively beneficially interested(k).

In both these cases, therefore, the purchaser is only entitled to a covenant from the parties conveying, that they have done no act to incumber. But it is to be lamented, that in these instances also the rule of the Court of Chancery differs from the practice of the Profession; for it always has been, and still is, the practice of the Profession to make all the cestuis que trust, whose shares of the purchase-money are in anywise considerable, join in covenants for the title, according to their respective in

terests.

The rule of equity on this subject may of course be altered by the agreement of the parties(); and therefore, in all agreements for purchase of estates from devisees, &c. in trust to sell, the purchaser should stipulate, that such of the persons entitled to the purchase-money as he may require, shall join in the usual covenants for the title. Where, however, the trust is to pay debts, or trifling legacies, which will exhaust the whole of the purchasemoney, it is obvious that such a stipulation could not be carried into effect, and it had therefore better be omitted.

It must, however, be remarked, that the case of Wakeman v. Duchess of Rutland is by no means an authority that cestuis que trust of money to be produced by the sale

(k) See 3 Ves. Jun. 505, 506.

(1) See 3 Ves. Jun. 236.

of estates devised to trustees to sell, cannot in any instance (*)be required to covenant for the title. Where the money to arise by sale of the estate is absolutely given to two or more persons, they are substantially owners of the estate, and must accordingly covenant for the title.

So, even where the money is in the first place to be applied in payment of debts, yet if they are all paid previously to the sale, the cestuis que trust must, it is conceived, covenant for the title.

Lord

Upon this case another observation occurs. Rosslyn seemed to think it dangerous to make the cestuis que trust parties to the conveyance; he said, the prudence of the common clause, that the receipts of the trustees shall be a discharge to the purchaser, would be defeated, and the purchaser would take upon himself the knowledge of all the trusts of the will(m). If this be so, conveyancers are indeed reprehensible; but as the purchaser buys under the will, whether the cestuis que trust are or are not parties to the conveyance, he is equally affected with the knowledge of the trusts; and yet, as cujus est dare ejus est disponere, it cannot be supposed that equity would compel a purchaser to see to the application of the purchase-money, when the testator himself has declared he shall not. In Ewer v. Corbet(n), it was holden, that notice to a purchaser of a bequest of a term did not signify, as every person buying of an executor where he is named executor, necessarily must have such notice. This resolution applies to the point in question, and seems to place it beyond controversy.

Lastly, in conveyances by the Crown, a purchaser is not entitled to any covenants for the title; and where an estate is sold by assignees of a bankrupt, the purchaser is only entitled to a covenant from the assignees, that they have not done any act to incumber the estate.

(m) See 3 Ves. Jun. 235.

(n) 2 P. Wms. 148.

(*)But a bankrupt is always made a party to the conveyance of his estate, to prevent the difficulty which the purchaser might otherwise be put to in maintaining and proving the title; and the bankrupt is generally made to enter into covenants for the title in the same manner as he would have done, had he sold the estate while solvent.

0000

SECTION V.

Of searching for Incumbrances.

IT now comes in order to consider in what cases incumbrances should be searched for.

I. There are few cases in which judgments should not be searched for on the part of a purchaser; and if there is any reason to suspect the vendor, it is absolutely necessary to search immediately before the conveyance is executed, lest any judgments may have been entered up during the treaty; although if any judgments should be entered up after the purchase-money, being an adequate consideration, is actually paid, equity would relieve the purchaser against the judgments, notwithstanding that they were entered up previously to the execution of the conveyance'; the vendor being, in equity, only a trustee for the purchaser, and a judgment being merely a general lien, and not a specific lien on the land: and this equity prevails, whether the judgment creditor had or had not notice of the contract(o)(I).

(0) See Nels. Ch. Rep. 184; Finch v. Earl of Winchelsea, 1 P. Wms. 278; 10 Mod. 418; 11 Vin. Ab. 118; and see Kennedy v. Daly, 1 Scho. & Lef. 373; Prior v. Penpraze, 4 Price, 99.

(I) See 9 Geo. 4, c. 35, as to judgments binding purchasers in Ire

land.

(*)In a case where a reversioner in fee first executed a bond, with a warrant of attorney to enter up judgment, and then mortgaged to another in fee, and on the 1st of January 1810 contracted to sell the estate to a purchaser without notice, and on the 5th of February 1810 a judgment was entered up and docketed, on the 28th of November 1812 an elegit issued, and an inquisition taken thereon on the 20th of January 1813, of which notice was given to the purchaser on the 16th of April 1810, but on the 15th of March 1810 the mortgagee in fee and the mortgagor had conveyed the estate in fee to the purchaser without notice, and a part of the purchase-money was secured to the seller by a legal term of years, and which was unpaid when notice of the judgment was given, and afterwards the purchaser paid off the mortgage, and took a surrender of the term(I), upon a bill filed by the judgment creditor, the Vice-Chancellor held, that as the greater part of the purchase-money was paid, and the rest secured by the term when the notice was given, the judgment creditor had no remedy in equity against the fee. The purchaser was then the mortgagor for the term. The notice therefore was nothing more than notice to the mortgagor that a person to whom he had granted a legal term, by way of mortgage, was indebted on judgment; but a judgment is, at law, no lien upon a legal term; and when the interest of the debtor is legal, a judgment is no lien in equity. Notwithstanding this judgment, the debtor could well assign his legal term at his pleasure. If there was no lien upon the term in the hands of the debtor, there could be no lien upon the term in the hands of his assignee(p).

(p) Forth v. The Duke of Norfolk, 4 Madd. 503. The case was heard upon appeal before Lord Eldon, who called for further papers. The parties agreed to be bound by his opinion.

(I) This fact appears from the papers in the cause.

It seems advisable to ask the vendor, or his attorney, whether there are any incumbrances which do not appear on the abstract; for if he answer in the negative, the search for judgments may be postponed until immediately before the execution of the conveyance; and if there are any judgments, and the purchase cannot be completed on that account, the purchaser can recover all his expenses from the vendor(q). It should seem, however, that the purchaser would equally be entitled to recover the expense of the conveyance, although he had not inquired after, or searched for, incumbrances before it was prepared, provided that he had examined the abstract with the deeds, and that the abstract did not disclose the incumbrances.

A purchaser who, at the time of his contract, is seised of the legal estate, as a mortgagee, need not search for judgments subsequently to the mortgage, for an equity of redemption is not within the clause of the statute of frauds, which will shortly come under our consideration; and it is, therefore, not extendable(r)(1)(253). And as the pur

(q) Richards v. Barton, 1 Esp. Ca. 268; vide supra, ch. 4.

(r) Lyster v. Dolland, 1 Ves. jun. 431; 3 Bro. C. C. 478; and see Burdon v. Kennedy, 3 Atk. 739; Scott v. Scholey, 8 East, 467; Metcalf v. Scholey, 2 New Rep. 461.

(I) Note. An equity of redemption has been held to be assets under the statute of frauds, 2 Freem. 115, pl. 130; although the determination appears not to have been acted upon. It were much easier to maintain that an equity of redemption is extendible under the statute. -Note, the case of Freeman v. Taylor, 3 Keb. 307, was before the statute.

Willington v. Gale, 7 equity of redemption is

(253) See Punderson v. Brown, 1 Day, 93. Mass. Rep. 138. But in Massachusetts, an made extendable by statute. In Pennsylvania, a judgment is a lien upon every kind of equitable interest in land, vested in the debtor at the time of the judgment. Curkhuff v. Anderson, 3 Binn. 4. But see Hurt v. Reeves, 5 Hayw. 53.