This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
10. 13 Halsbury's Laws of England 83; Bailey v. Barnes (1894) 1 Ch. 25; Taylor v. Russell (1892) App. Cas. 244; Flagg v. Mann, 2 Sumn. (U. S.) 486; United States v. Detroit Timber
6 Lumber Co., 131 Fed. 668; People v. Swift, 96 Cal. 165, 31 Pac. 16; Carlisle v. Jumper, 81 Ky. 282; Flynt v. Hubbard, 57 Miss. 471; Newton v. Mclean, 41 Barb. (N. Y.) 285; Wilson v. Western North Carolina Land Co., 77 N. C. 445; Oviatt v. Brown, 14 Ohio 285, 45 Am. Dec. 539; Perkins v. Hays, 3 Tenn. 16::, 5 Am. Dec. 680; Hill v. Moore, 62 Tex. 610.
11. Blackwood v. London Chartered Bank of Australia, L. R. 5 Priv. Coun. App. Ill; Bailey v. Barnes (1898) 1 Ch. 25; Taylor v. Russell (1892) App. Cas. 244; Fitzsimmons v. Ogden,
7 Cranch. (U. S.) 2, 3 L. Ed. 249; Bayley v. Greenleaf, 7 Wheat.
(U. S.) 46, 5 L. Ed. 393; United States v. Detroit Timber & Lumber Co., 131 Fed. 668 (dictum); Wheaton v. Dyer, 15 Conn. 307; Mcnary v. Southworth, 58 111. 473; Campbell v. Brackenridge,
8 Blackf. (Ind.) 471; Weston v.
Dunlap, 50 Iowa, 185; Carroll v. Johnston, 55 N. C. 120; Gibler v. Trimble, 14 Ohio, 323; Dueber Watch Case Mfg. Co. v. Dougherty, 62 Ohio St. 589, 57. N. E. 455; Zollman v. Moore, 21 Gratt. (Va.) 313; Hoult v. Donahue, 21 W. Va. 294. See Smith Paper Co. v. Servin, 130 Mass. 511.
But that the holder of the later equity cannot thus protect himself after notice of the earlier equity, see Fash v. Ravesies,' 32 Ala. 451; Louisville & N. R. Co. v. Boykin, 76 Ala. 560; Paul v. Mcpherrin, 48 Colo. 522, 21 Ann. Cas. 460, 111 Pac. 59 (dictum); Corn v. Sims, 3 Mete. (Ky.) 391; Cline v. Osborn, 24 Ky. L. Rep. 511, 68 S. W. 1083; Wing v. Mcdowell, Walk. Ch. (Mich.) 175; Kilcrease v. Lum, 36 Miss. 569; Doe v. Doe. 37 N. H. 268; Dean v. Anderson, 34 N. J. Eq. 496; Grimstone v. Carter. 3 Paige (N. Y.) 421, 24 Am. Dec. 230; Golds-borough v. Turner, 67 N. C. 412; Bush v. Bush, 3 Strobh. Eq. (S. C.) 131, 51 Am. Dec. 675; Pillow v. Shannon, 3 Yerg. (Tenn.) 508 (semble); Hoover v. Donally, 3 Hen. & M. (Va.) 316 (semble).
- (c) As between equitable interests. As between interests or claims of a purely equitable character, that is, enforceable in equity alone, the rule, as generally stated, is that between equal equities priority of time will prevail, that is, they will rank according to their time of accrual.14 And the fact that the later equity is acquired without notice of the earlier equity is ordi-narilv immaterial in this connection.15 For instance,
11a. Post, Sec. 639.
12. Saunders v. Dehew, 2 Vera. 271; Pilcher v. Rawlins, L. R. 7 Ch. 259; Bates v. Johnson. Johns. (N. Y.) 304; Taylor v. London & County Bank (1901) 2 Ch. 231; Mumford v. Stohwasser, L. R. 18 Eq. 563; Central Trust Co. v. West India Improvement Co. 169 N. Y. 314, 62 N. E. 387.
13. See the discussion of the English cases bearing on the subject in White & Tudor's Leading Cases, (8th Ed.) vol. 2, at p. 128.
14. Snell, Equity (16th Ed.) 10; 2 Pomeroy, Eq Jur. Sec.Sec. 683, 718; Louisville & Nashville R. Co. v. Boykin, 76 Ala. 560; Carlisle v. Jumper, 81 Ky. 282; Wailes v. Cooper, 24 Miss. 208; Dedeaux v. Cuevas, 107 Miss. 7, 64 So. 844; Boskowitz v. Davis. 12 Nev. 466; Wilkes v. Harper, 2 Barb. Ch. (N. Y.) 338; Williams v. Lewis, 158 N. C. 571, 74 S. E. 17; Dueber Watch Case Mfg. Co. v. Dougherty, 62 Ohio St. 589, 57 N. E. 455; Henry v. Black, 213 Pa. 620, 63 Atl. 250; 454; Lowther Oil Co. v. Miller Sibley Oil Co., 53 W. Va. 501, 97 Am. St. Rep. 1027, 44 S. E. 433. Briscoe v. Ashby, 24 Gratt. (Va.) "Every equitable title is incomplete on its face. It is in truth nothing more than a title to go into chancery to have the legal estate conveyed, and therefore every purchaser of a mere equity takes it subject to every clog that may lie on it, whether he has had notice of it or not." (hew v. Barnett, 11 Serg. & R. (Pa.) 389, per Gibson, .1.
15. In re Vernon Ewens & Co., 33 Ch. Div. 402; Boone v. Chiles, 10 Pet. (U. S.) 177, 9 L. Ed. 388; Curts v. Cisna, 7 Biss.
If one having an equitable interest, the legal title outstanding- in another, mortgages his interest, and sub sequently undertakes to convey his whole interest to a purchaser, the purchaser can acquire only such interest as is left in the grantor, that is, the equities of the mort gagee and purchaser are ranked according to time.16 So if a trustee, having the legal title, sells, without conveying the legal title, to another, the equity of the cestui que trust against him, being prior in time to that of the purchaser, will be preferred.17 But this general rule of protection for the earlier equity applies only when the equities are, in other respects than that of time, equal one to the other, and such equality is lacking if the holder of the earlier equity, by his fraudulent 01 negligent statements or conduct, misled the later incumbrancer.18 Thus the holder of a prior equity, who expressly disclaimed any such equity, and by such disclaimer induced another to pay value for an equitable interest in the property, could not assert his equity as against the later equity, the former equity being, by reason of his misconduct, inferior to the latter.19 And it is upon such a theory that the equity of a vendor's lien has occasionally been postponed to the subsequent equity of one who purchased in ignorance of the lien, the conduct of the lienor in failing- to take a mortgage to secure his claim, or otherwise to make the existence of the lien a matter of record, being regarded as involving an element of negligence, and as consequently making his equity inferior to that of the subsequent purchaser.20 In England such postponement of the earlier to the later equity quite frequently occurs by reason of the negligent conduct of the holder of the prior equity in not obtaining the title deeds or in not retaining possession of them.21 This can obviously not happen in this country, where the possession or non possession of the title deeds possesses no significance. Such cases of postponement of the earlier to the later equity by reason of the misleading conduct of the holder of the earlier equity might usually, if not invariably, it seems, be regarded as applications of a doctrine analogous to that of estoppel in pais.22