"Where an estate subject to a paramount charge becomes divided amongst several bona fide purchasers, it becomes a matter of some difficulty to determine the proportions in which they are to bear it as between themselves. The authorities on the subject will be found stated in full in a learned note by the Editor of Mr. Jarman's work on Conveyancing (r), and seem to lead to the following conclusions, viz.

If two estates, X. and Y., are subject to a common charge, and estate X. be sold to A., A. will, as against the vendor and his representatives, have a prima facie equity, in the absence of express agreement, and whether or no he had notice of the charge, to throw it on estate Y. in exoneration of estate X. (s).

If, then, estate Y. be subsequently sold to B. with notice of the charge and of the prior sale of X. to A., B. purchases with notice of A.'s equity, and the entire charge must rest upon Y. (t).

If B., at the time of his purchase, have notice of the charge as affecting Y., but be not led to suppose that estate X. is also subject to it, or if he purchase without notice of the charge, and A. purchased with notice of the charge as affecting Y., in either of these cases, it is conceived, B.'s equity is inferior to A.'s, and the entire charge must rest upon Y.

If B. purchase with notice of the charge as affecting Y., and with no notice of the sale to A., and be led to suppose that X. is subject to the charge, or if both purchase without notice of the charge, B.'s equity would appear in either case to be equal in degree to A.'s; so that, either party, by taking a transfer of the charge and the securities, (supposing them to be such as to give the incumbrancer a claim at law against the two estates,) would, it is conceived, be able to throw the charge exclusively upon the other (u); so, the incumbrancer himself, if able to proceed at Law against the estates, might proceed against the two in such proportions, or against such one only, as he saw fit; and the purchasers, if they had the legal estate, (as might happen in the case of the incumbrance being a rent-charge,) would have no remedy as between themselves; but if their estates were equitable, or if the incumbrancer were obliged to, or did in fact, resort to a Court of Equity for payment of his claim, then, the equities being equal, A.'s would prevail as being prior in date.

Contribution by purchasers to paramount charge.

(r) Vol. IX. pp. 127 et seq.

(s) The marginal note to Barnes v. Racster, 1 Y. & C. C. C. 401, is incorrect; the first mortgage in that case was of only one estate, see p. 403.

(t) See and consider Hamillon v. Royse, 2 Sch. & Lef. 315, 328.