(o) Jones v. Barnett, 1899, 1 Ch. 611, 1900, 1 Ch. 370.

(p) Pp. 470, 471.

(q) Jones v. Jones, 8 Sim. 633; Wilmot v. Pike, 5 Hare, 14; Phillips v. Phillips, 4 De G. F. & J. 208, 215; Taylor v. London and County Bank, 1901, 2 Ch. 231, 260; Perham v. Kempster, 1907, 1 Ch. 373, 379.

(r) See previous note, and Bailey v. Richardson, 9 Hare, 734; Taylor v. Russell, 1892, A. C. 244, where the prior equitable mortgage was only excluded by tacking.

(s) See White v. Hillacre, 3 Y. & C. Ex. 597, 608, 609; Jennings v. Jordan, 6 App. Cas. 698; flatter v. Cobnan, 19 Ch. D. 630; Minter v. Can; 1894, 3 Ch. 498. These cases establish that, if no right of consolidation should have been acquired prior to the sale of the equity of redemption, it cannot afterwards arise by reason of the mortgage and some security on other property of the mortgagor becoming subsequently vested in the same person, and absolute at law. But if a man buy from the same mortgagor, and at the saint' time, the equity of redemption of several properties subject to different mortgages, he takes them subject to any right of consolidation which may subsequently arise: Vint v. Padget, 2 De G & J. 611; Pledge v. White, 1896, A. C. 1ST; and see Wms Real Prop. 575 - 577, 21at ed.

Through tacking.

(t) See Bailey. Barnes, 1894, 1 Ch. '25, where the prior equitable right was only defeated by tacking.

(u) See Bates v. Johnson, Joh. 304, where the claim of the cestui que trust was only defeated by tacking: Care v. Cave, 15 Ch. D. 639: Taylor v. London and County Bank, 1901, 2 Ch. 231.

(x) See Cave v. Cave, 15 Ch. D. 645 - 649. To a bare right of suit in equity, such as a claim to set aside a conveyance for fraud, he could, after payment of the price, plead purchase for value without notice of the equity; S. C.; below. Chap. XIII. Sec.1; Chap. XIV. Sec. 1.

(y) Jones v. Powles, 3 My, & K. 581; Bug. V. & P. 196; Young v. Young, L. R. 3 Eq. 801.

Inquiries to be made by purchaser of an equity of redemption.

(z) Frere v. Moore, 8 Price, 475, 488, 489; Jones v. Powles, 3 My. & K. 581, 596, 598; Bates v. Johnson, Joh. 304; Bailey v. Barnes, 1894, 1 Ch. 25, 36, 37. But a person entitled to a charge on the purchase money to be paid under a contract for the sale of an equity of redemption, could not tack this charge to the legal mortgage: Laeey v. Ingle, 2 Ph. 413.

(a) Bugden v. Bignold, 2 Y. & C. C. C. 377, 390; Low v. Bou-verie, 1891, 3 Ch. 82.

(b) Ibbottson v. Rhodes 2 Vern. 554; Strange v. Hawkes, 4 De G. M. & G. 1S6, 196: Low v. Bou-verie, 1891, 3 Ch. 82.

(c) Le Neve v. Le, Amb. 436, 446; Birch v. Ellames, 2 Anst. 427: see also Hopkinson v. Rolt, 9 H. L. C. 614; Menzies. v. Lightfoot, L. R. 11 Eq. 459: London and County Bank cliffe, 6 App. Cas. 722: Went v. Williams, 1899, 1 Ch. 132.

(d) Above p. 176, nn. (q), (r):

Rooper v. Harrison, 2 K. & J. Phipps v. Loregrove, L. R. L6 Eq. 80,91; Re Richards, 16Ch.D.689; Hopkins v. Hemsworth, 1898, 2 Ch. 347.

(e) Peacock v. Burt, 4 L. J. (N. S.) Ch. 33.

(/) Perham v. Kempster, 1907, 1 Ch. 878, 381.

(g) 10 Ch. D. 365.

(h) See above, pp. 135, n. (f). 178.

It has been held that if the purchaser of an equity of redemption pay off the first mortgage when he has notice of an intermediate charge, the first mortgage is extinguished and the intermediate incumbrancer is entitled to enforce his security as the first charge on the land without redeeming the mortgage so paid off (n).

Purchaser's right of tacking.

Purchaser of equity of redemption paying off the first mortgage (i) See the cases cited above, pp.476,477, and notes. But where the legal estate is held on an express trust for the prior incumbrancer, the purchaser cannot obtain any advantage by getting in the same after he has had notice of the prior incumbrance: Saunders v. Dehew, 2 Vern. 271; Mumford v. Stohwasser, L. R. 18 Eq. 556; Harpham v. Shacklock, 19 Ch. D. 207; Taylor v. London and. County Bank, 1901, 2 Ch. 231, 25G, 257.

(k) Le Neve v. Le Neve, Amb.

436, 446; Birch v. Ellames, 2 Anst. 427; Potter v. Sanders, 6 Hare, 1; Bailey v. Richardson, 9 Hare, 734.

(l) Tourville v. Naish, 3 P. W. 306; Story v. Windsor, 2 Atk. 630; Hardingham v. Nicholls, 3 Atk. 304; Maundrell v. Maun-drell, 10 Ves. 246, 271; Taylor v. Baker, 5 Price, 306; Rayne v. Baker, 1 Giff. 241.

(in) Above, pp. 170, 238.

(u) Toulmin v. Steere, 3 Mer. 210.

This doctrine has been frequently mentioned with disapproval, though never precisely overruled (o). It has however been established that if, when the first mortgage is so got in, an intention be shown to keep the charge on foot, the purchaser will be entitled to the benefit thereof, and the intermediate incumbrancer cannot then enforce his security without redeeming the charge. And it is not necessary for this purpose that the mortgage should be transferred to a trustee for the purchaser; it will not merge if the intention to keep it alive appear either by express declaration or by inference from the surrounding circumstances, notwithstanding that the mortgage and the equity of redemption be both vested in the same person (p).

If the mortgagee under a legal mortgage of land purchase the equity of redemption, he will be entitled, under the doctrine of tacking, to hold the land free from all intermediate equitable incumbrances of which he had no notice at the time when he paid his purchase money (q). But with regard to mesne incumbrances of which he had notice and which were not discharged, it was formerly considered that, unless his mortgage were transferred to a trustee for himself for the purpose of keeping it alive, it merged in his ownership of the premises, with the consequence that the mesne incumbrances became first charges thereon, and the incumbrancers could enforce their securities without redeeming the legal mortgage (r). But it is now established in this case, as well as that of the redemption of a first mortgage by the purchaser of an equity of redemption, that if an intention to keep the mortgage on foot be shown, either by express declaration or by implication from the surrounding circumstances, the mortgagee purchasing the equity of redemption may avail himself-of the charge as a protection against mesne incumbrancers, of whose claims he had notice, notwithstanding that the first mortgage, as well as the equity of redemption, be vested in himself alone; and when such an intention is shown the mesne incumbrancers must redeem the first mortgage if they wish to enforce their securities (s). Both a mortgagee purchasing the equity of redemption, and the purchaser of an equity of redemption redeeming the mortgage, should be careful to take a conveyance in such form that there can be no doubt whether it is intended to keep the charge alive or not (t). A charge so kept on foot remains the personal estate of the party, for whose benefit it is preserved: but it may subsequently be merged by any assurance of the land which would make it a fraud to keep the charge alive (u).