(3.) Purchaser, how far protected against defective execution of powers; - against prior claimants who have encouraged him to purchase; - and by Statute in various cases.

Equity will supply the defective execution of a power, if the defect consist merely in the non-observance of some required formality (b); but not if such formality be positively required by the legislature (c): nor can it supply a defect which goes to the very nature of the power; as where a power to appoint by will is attempted to be executed by deed (d): and the Legislature has expressly excluded the interference of Equity, where a contract by a tenant-in-tail is not perfected in manner required by the 3 & 4 Will. IV. c. 74 (e).

The purchaser will also be protected in Equity against any person, (even an infant, or a married woman,) who, having a prior interest in the property, encourages, or permits him, to complete his purchase in ignorance of its existence (f): and a party guilty of misrepresentation will

Chap. xv.

Rule as to priority how far applicable as against charities.

Purchaser how far relieved against defective execution of powers.

Relieved against incumbrancers, etc, who encourage purchase of, have this effect (p): and the same would, it is conceived, hold good in the case of a purchaser, if a plausible reason were given for his assenting to, what would, prima facie, be an unreasonable and suspicious request: in fact, mere indiscretion seems insufficient to postpone a purchaser; there must, for that purpose, be an intent to facilitate a fraud, or a wilful indifference to a fraud which there was good reason to suspect was about to be committed.

& G. tem. Pl. 208, 216, Averall v. Wade, Llo. & G. tem. Sug. 252.

(a) East Grimsted case, Duke's Charitable Uses, 640; a mere length of possession was no protection in equity, before the late Statute of Limitations, to a purchaser who bought with notice of the charitable trust, Att.-Gen. v. Christ's Hospital, 3 Myl. & K. 344; as to the effect of the statute, vide supra, 190.

(b) See 2 Sug. Pow. 94, 6th ed.

(c) Sug. 1024.

(d) Reid v. Shergold, 10 Ves. 370; Archibald v. Wright, 9 Sim.161

(c) See sect. 47.

(f) See Watts v. Cresswell, 2 Eq. Ca. Abr. 515; Savage v. Foster, 9 Mod. 35; Ibbottson v. Rhodes, 2 Vern. 554; Draper v. Borlace, ib. 370; Berrisford v. Milward, 2 Atk. 49; Govett v. Richmond, 7 Sim. 1; Clare v. Earl of Bedford, 13 Vin. Abr. 536; Boyd v. Belton, 1 J. & L. 730; Thompson v. Simpson, 2 J. & J. 110; Overton v. Banister, 3 Hare, 503; Nicholson v. Hooper, A Myl. & Cr. 179; see further as to infants, Stikeman v. Dawson, 1 De G. probably be bound by it, although he make it in ignorance or mistake, if he might have known the truth (g): but a mortgagee, it appears, need not answer an inquiry as to the extent of his claims unless the intended purchaser be entitled and offer to redeem him (h); nor need he voluntarily communicate his claim to a person whom he knows to be about to purchase (i); unless he have reason to believe that a fraud is contemplated by the vendor (k).

The purchaser will also be protected in Equity against any person who, knowing his own title, encourages, or fraudulently permits the former, in ignorance of it, to lay out money in improving the property (l); but when a party has once given a distinct notice of his claim, and the purchaser subsequently lays out money, it lies on him to show that the other has abandoned, or given reason to believe, that he has abandoned, his claim (m); nor need the notice disclose the particulars of the claimant's title; nor, if the claim exceed what he is entitled to, is the party in possession therefore justified in disregarding it (n).

And it appears that the mere fact of a purchaser or mortgagee allowing the vendor to retain the title deeds, will not, in the absence of other circumstances indicative of fraud, affect his title as against subsequent purchasers or incumbrancers (o): even the fact of a mortgagee having returned the deeds to the mortgagor, will not, in itself, or subsequent expenditure on, the property.

Mere omission to take deeds does not affect purchaser's title as against subsequent incumbrancers.

& S. 90; Esron v. Nicholas, ib. 118, supra; Wright v. Snowe, 2 De G. & S. 321.

(g) See Pearson v. Morgan, 2 Bro. C. C. 388; but see Sug. 1022, n.

(h) Supra, 228.

(i) Osborn v. Lea, 9 Mod. 97.

(k) Vide supra, p. 228.

(l) See Kenney v. Browne, 3 Ridg. P. C. 518; East India Company v. Vincent, 2 Atk. 83; and see Williams v. Earl of Jersey, Cr. & Ph.

91, and Powell v. Thomas, 6 Hare, 300.

(m) See Clare Hall v. Harding, 6 Hare, see 297.

(n) S. C. ib. 273.

(o) See Evans v Bicknell, 6 Ves. 174; Harper v. Faulder, 4 Madd. 129; Martinez v. Cooper, 2 Russ. 198; Stevens v. Stevens, 2 Coll. 20; Allen v. Knight, 5 Ha. 272; affirmed 11 Jur. 527; Farrow v. Rees, 4 Beav. 21.

It has been even held, that the omission of the assignees of an insolvent for nineteen years to sell or take possession of his copyhold property, or of the copies of Court Roll, or to enter their title upon the Court Rolls, whereby the insolvent is enabled to retain the property as if owner, and mortgage it for value to a person without notice of the insolvency, is no sufficient ground for giving the mortgagee a charge in priority to the title of the assignees (q).

By the 12 & 13 Vict. c. 106 (r), all payments really and bond fide made to or by a bankrupt, and conveyances executed by him before the date of the fiat, or the filing of a petition for adjudication, and all contracts, dealings, and transactions, by and with him really and bond fide made and entered into before the date of the fiat or the filing of such petition, are protected, if the other party has no notice of a prior act of bankruptcy (s): the same act (t) also provides (u), that no person shall be liable to become bankrupt by reason of any act of bankruptcy committed more than twelve months before the issuing of the fiat, or filing of the petition for adjudication; and also that no purchase from any bankrupt, bond fide, and for valuable consideration, where the purchaser had notice of a prior act of bankruptcy, shall be impeached by reason thereof unless a fiat or petition for adjudication shall have been sued out or filed within twelve months after such act of bankruptcy: and the Gazette is made conclusive evidence of the bankruptcy, unless the bankrupt proceed to dispute the fiat or petition for adjudication within twenty-one days after the advertisement of the bankruptcy appears in the Gazette, (if he was within the United Kingdom at the date of the adjudication;) or within three months, (if he was then in any other part of Europe;) or within twelve months, (if he was then in any other part of the world) (w): and no title to any real or personal property sold under any bankruptcy is to be impeached by the bankrupt, or any person claiming under him, in respect of any defect in the fiat or petition for adjudication, or in any of the proceedings under the same, unless the bankrupt shall, within the time allowed by the Act, have commenced proceedings to dispute, dismiss, or annul the fiat, petition, or adjudication, and duly prosecuted the same (x): and the Act contains provisions, protecting, in the event of a fiat, petition, or adjudication, being superseded, annulled, or dismissed, any person who may bond fide, whether under compulsion or otherwise, and without notice of the institution of proceedings to dispute or annul such fiat, petition, or adjudication, have paid to the assignees any money due to the bankrupt's estate (y): and if, before the time has elapsed within which the bankrupt may dispute the bankruptcy, his assignees commence any action or suit for any money due to his estate, the debtor is authorized to pay the money into Court, which payment is to be valid as against the bankrupt (z): and where a conveyance of the bankrupt's property would require to be registered, the certificate of appointment of assignees is to be registered: and if not so registered within, (as regards Great Britain and Ireland,) two months from the appointment, the same is not to affect the title of a purchaser for valuable consideration, without notice, claiming under a deed registered prior to the registration of such appointment (a): and other Acts (b) contain similar provisions for the registration of the certificates of appointment of assignees of insolvents.