This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The doctrine of reputed ownership.
(p) S. 47.
(q) S. 48.
(r) See as to the old law on conveyances by a bankrupt, Nunes v. Carter, (1860) L. R. 1 P. C. at p. 349 ; 36 L. J. P. C. 12 ; per Ld. Westbury. See also Re Slobodinsky, 1903, 2 K. B. 517; 72 L. J. K. B. 883.
(s) As to the application of the words "in his trade or business," see Colonial Bank v. Whinney, (1885) 30 Ch. D. 261, 274, 281 ; 11 A. C. 426,445 ; 55 L. J. Ch. 585; 56 ib. 43 ;
Ex p. Nottingham Bank, (1885) 15 Q. B. D. 441 ; 54 L. J. Q. B. 601; Shannon v. Mason, 1899, 2 Q. B. 679 ; 69 L. J. Q. B. 3; Re Watson § Co., 1904, 2 K. B. 753 ; 73 L. J. K. B. 854.
(t) Not including, it seems, the bankrupt: see Williams on Bkcy., 8th ed. 223, as to who is a true owner, ib. 226. See also Re Watson & Co., sup.
(u) As to what are things in action within the section, see Williams on Bkcy., 8th ed. 219 - 221.
It was decided by Lord St. Leonards, that the title of an assignee for value of an equitable chose in action, who buys without notice of a prior insolvency, and is first to give notice of his claim to the trustee of the fund, is good as against the assignee in the insolvency (b); and assignees in bankruptcy, omitting to give such notice, have been postponed to a subsequent purchaser for value, who gave due notice of his assignment (c); but a trustee in bankruptcy being an assignee subject to all equities does not, by giving notice before him, obtain priority over an equitable mortgagee for value (d). And though express actual notice is not absolutely necessary, yet it ought in every case to be given. Thus, where a trustee had acquired knowledge of his cestui que trust's insolvency through an advertisement of it, it was held that a subsequent incumbrancer, who gave formal notice to the trustee, thereby acquired no priority over the assignee in insolvency (e). Upon the same principle, the title of a purchaser in good faith of an equitable interest in land, buying without notice of the vendor's bankruptcy, and subsequently getting in the legal estate, would, it is conceived, be good as against the trustee in bankruptcy. And a vendor in good faith has been held entitled to retain the deposit paid to him by a bankrupt who fraudulently purported to enter into a contract for the purchase of the vendor's estate (f). The unpaid purchase-money of real estate is not an equitable chose in action within the above ruling: thus, where a purchaser without notice of any act of bankruptcy and before adjudication contracted to purchase leasehold, and after adjudication, but without notice, paid the purchase-money to the bankrupt, he was held not to be entitled to an assignment from the trustee in bankruptcy without payment to him of the purchase-money (g).
Purchaser of equitable interest, when protected against prior insolvency or bankruptcy.
(x) Per Lord Selborne, in Ex p. Watkins, (1873) 8 Ch. 529; 42 L. J. Bkcy. 50.
(y) Per Lord Blackburn, in Colonial Bank v. Whinney, (1886) 11 A. C. 426, 435 ; 55 L. J. Ch. 585; 56 ib. 43.
(a) See judgment of Ld. Cairns, in Lloyd v. Banks, (1868) 3 Ch. 488, 490; 37 L. J. Ch. 881.
(b) Be Atkinson, (1852) 2 D. M. & G. 140; Re Barr's Trusts, (1858) 4 K. & J. 219; 27 L. J. Ch. 548 ; cases under the old statutes. And under the Acts of 1869 and 1883, the result would seem to be the same; Palmer v. Locke, (1881) 18 Ch. D. 381; 51 L. J. Ch. 124; Be Stone's Will, 1893, 37 Sol. J. 354; Mercer v.
Vans Colina, 1897, 67 L. J. Q. B. 424 ; Be Beall, 1899, 1 Q. B. 688 ; 68 L. J. Q. B. 462 ; and see Bkcy. Act, 1883, s. 50 (6). It was held to be otherwise, however, under the Act of 1849, where there were strictly negative words ; Be Coombe's Trusts, (1859) 1 Gif. 91 ; Be Bright's Settlement, (1880) 13 Ch. D. 413.
(c) Bartlett v. B., (1857) 1 D. & J. at p. 130; 26 L. J. Ch. 577; Ex p. Boulton, (1857) ib. 163 ; 26 L. J. Bk. 45; Bay v. D., (1857) ib. 144; 26 L. J. Ch. 585 ; Bickards v. Gledstanes, (1861) 3 Gif. 298 ; affirmed 31 L. J. Ch. 142 ; Thompsonr. Tomkins, (1852) 8 Jur. N. S. 185 ; 31 L. J. Ch. 633 ; see Be Russell's Bolicy Trusts, (1872) 15 Eq. 26.
Further, an equitable incumbrancer or purchaser will, in Equity, be protected against a creditor under a subsequent judgment, though the latter may have acquired the legal seisin and possession of the land under an elegit, without notice of the mortgage or purchase (h) : but, as we have seen (i), the purchaser, after notice of the subsequent judgment having become a charge on the land, could not, without the consent of the creditor, safely pay to the vendor any part of the purchase-money which happened to remain unpaid.
As to unpaid purchase-money.
(d) Re Wallis, 1902, 1 K. B. 719; 71 L. J. K. B. 465.
(e) Lloyd v. Banks, (1868) 3 Ch. 488; 37 L. J. Ch. 881.
(f) Collins v. Stimson, (1883) 11 Q. B. D. 142; 52 L. J. Q. B. 410.
(g) Ex p. Rabbidge, (1878) 8 Ch. D. 3G7.
(h) See Whiticorth v. Gauguin, (1846) 1 Ph. 728; and cases there cited ; see, too, Cooke v. Wilton, (1860) 29 Beav. 100; 30 L. J. Ch. 461 ; Eyre v. M'Dourll, (1861) 9 II. L. C. 620 ; Badeley v. Consolidated Bank, (1886) 34 Ch. D. 536, 546.
(i) Inf. p. 1211.
The Land Tax Redemption Acts, 1814 (k) and 1817 (/), contain provisions for confirming, in certain specified cases, defective titles to land tax. The Judgments Act, 1855, s. 11, protects purchasers claiming under paid-off mortgagees, against the obligations of such mortgagees to the Crown. By the Crown Claims Limitation (Ireland) Act, 1808, defective titles in Ireland are, in the cases therein specified, rendered valid as against the Crown.
Error in sales of land tax.
The Crown Lands Act, 1829, contains provisions (ss. 46 and 73) for the protection of parties taking conveyances or leases from the Commissioners of Woods and Forests. The Post Office (Lands) Act, 1863, s. 3, now repealed (m), contained similar provisions on any sale, exchange, or lease of land by the Postmaster-General. On the sale of land forming part of the possessions of the Duchy of Cornwall, purchasers are expressly exempted from the necessity of seeing that provisions of the Duchy of Cornwall Management Acts, 1863 to 1893, have been complied with (n).
Sales by Commissioners of Woods and Forests.