(A) Judgment debts. - A person to whom the tenant owes money, cannot seize his lands until he has sued the tenant and the Court has given judgment in his favour against the tenant. He then becomes a judgment creditor.

A judgment creditor may obtain the issue of a "writ of elegit" and thereby obtain possession of the land.

History of the writ.

(i.) At common law the creditor could not seize the land of the tenant who owed him money, but could only seize his chattels by writ of fieri facias.

(ii.) By a statute of Edward I. (b), the creditor was allowed to seize the chattels of the tenant (except oxen and beasts of plough) and half the land. If he chose to claim against the land in this way, he issued the writ of elegit (= " he has chosen ").

(iii.) By the Judgments Act, 1838 (c), the creditor can take the whole land (d).

Form of the write (e). - The writ is issued to the sheriff commanding him to hold an inquiry by means of a jury as to what lands the tenant holds in his bailiwick.

The verdict of the jury is put into writing and signed by the sheriff: this is called the "return to the writ."

(b) 13 Edw. I. c. 18.

(c) 1 & 2 Vict. c. 110.

(d) For the history of this writ see "Williams on Real Property," 20th edn., p. 262.

(e) See further "Goodeve on Real Property," p. 373.

As soon as the "return to the writ" is complete, the creditor is deemed to be in possession of the land.

A judgment creditor who is in possession of the land under a writ of elegit is said to have an estate by elegit. He can take possession of the land or sell it under an order of the Court (f).

This estate is a chattel real.

The writ must be registered.

This was first required by the Judgments Act, 1838, and is now governed by the Land Charges Act, 1900. The writ must be registered in the Office of Land Registry (see p. 288), and must be renewed every five years (g).

If the writ is not registered it is void as against a bond fide purchaser for value from the tenant if the purchaser had no notice of the writ.

Thus, if A is tenant in fee simple of land, and owes 1000 to B, B obtains a judgment against A, and issues a writ of elegit. After the "return to the writ" is signed, A sells his land to C, who pays 1200 for it, and knows nothing of the judgment in favour of B. C makes the proper searches in the Land Registry, and there is no entry of B's writ. C takes the land free from B's claims.

Any estate in land may be seized by writ of elegit including leaseholds: but goods cannot now be taken under this writ ( h). If an estate tail is seized by a creditor in this way, the rights of the creditor are good as against the issue of the tenant in tail, but do not bind the persons entitled to the fee simple in remainder until the estate tail is barred (i).

(f) 27 & 28 Vict. c. 112 & R.S.C.O. 55 r. 9 B. (g) See Land Charges Act, 1900, 63 & 64 Vict. c. 26, and the Land Charges Act of 1888, 51 & 52 Vict. c. 51, ss. 5 & 6.

(h) Bankruptcy Act, 1883, 46 &47 Vict. c. 52, s. 146. (i) See Anthony v. Anthony, [1893] 3 Ch. 498.

(B) Secured debts (see Mortgages, Chapter XXIX (Mortgages. Section I. Form And Effect).). - If the tenant has mortgaged or charged his land to secure the payment of a debt, the creditor often (j) has -

(i.) A power to sell the land, and pay the debt out of the proceeds, And

(ii.) a power to appoint a receiver,

A receiver is a person appointed by the creditor (or in some cases by the Court) to receive the rents and profits of the land, that is, to receive the income, as distinct from the land itself. He receives the income as agent of the debtor (or as an officer of the Court), and his duty is to pay the interest on the debt, and sometimes the debt itself, out of the income, and to pay the balance of the income to the debtor.

A receiver may also be appointed by the Court as a means of enforcing a judgment debt.

A receiver appointed for the purpose of paying off a judgment debt is called "a receiver by way of equitable execution." He is not usually appointed if there is any other way of enforcing the judgment (k).

(C) Bankruptcy (l). - If a tenant of land owes debts to the extent of 50 or more, any creditor or creditors may petition the Court to have him declared bankrupt, but only if -

(1) The tenant owes to the petitioning creditors at least ,50,

And (2) The debt is a "liquidated" or ascertained amount, and is not a contingent or future debt,

And (3) the tenant has done some act which is declared to be an "act of bankruptcy" by the bankruptcy Acts (m).

(j) See p. 228.

(k) Goldschmidt v. Oberrheinische Metallwerke, [1906] 1 K.B. 373. (l) This question is dealt with only so far as concerns land, (m) Bankruptcy Act, 1883, s. 6.

Acts of bankruptcy are now defined by s. 4 of the Bankruptcy Act, 1883, and include, among other things, any fraudulent dealing with property, or fraudulent payment of one creditor in preference to other creditors, or if the goods of the tenant are seized and sold under a writ of fieri facias, or if he fraudulently evades his creditors or leaves the country for that purpose.

The tenant may himself petition to he made bankrupt.

A petition is often filed by a person who is being worried by the pressure of his creditors.

When the petition is presented, the Court makes a receiving order.

The effect of a receiving order vests all the property of the debtor in the Official Receiver, an officer of the Court. The creditors then meet, and appoint a trustee to look after then-interests, who is called the trustee in bankruptcy, and whose • duty is to sell the property of the bankrupt and divide the-proceeds among the creditors.

On the appointment of a trustee all the land of the bankrupt tenant vests in his trustee in bankruptcy.

The legal estate passes out of the tenant, and goes to the trustee for the whole estate of the tenant whatever it may be, and the trustee can sell and convey both the legal and equitable estate.

The trustee in bankruptcy takes the whole estate or interest of the tenant and no more.


(l) Interests in land which belong to the bankrupt tenant, but do not vest in the trustee in bankruptcy. These are all estates which the bankrupt tenant holds as trustee for another.

These strictly belong to the bankrupt at law, but they are not affected by his bankruptcy; not even the legal estate passes to the trustee in bankruptcy.

(2) Interests in land which do not belong to the bankrupt tenant, and yet do vest in the trustee in bankruptcy.

(i.) Estates Tail. - Not only does the life interest of the tenant vest in the trustee, but also the interests of the issue; the trustee in bankruptcy thus gets a base fee and he can bar the entail for the benefit of the creditors, provided the tenant does not die before being adjudicated bankrupt.

Thus the trustee in bankruptcy can, by barring the entail, sell the whole fee simple.

(ii.) Land over which the bankrupt tenant had, a general power of appointment which he could exercise for his own benefit.

As we have seen (p. 106), a power may be given to A to give land to any one he pleases, without giving A any estate or interest in the land. This power generally enables A to give the fee simple to himself. If so, A's trustee in bankruptcy can exercise this power and give the fee simple to himself or sell it for the benefit of the creditors.

(iii.) Land which the tenant has conveyed to others, in the following cases: -

(a) Voluntary Conveyances, or gifts of land without consideration.

By the Bankruptcy Act, 1883 (s. 47.)

(a) If the tenant becomes bankrupt within two years after a voluntary conveyance, the conveyance is void.

(B) If he becomes bankrupt within ten years after a voluntary conveyance, the conveyance is void unless he can show that at the time of the conveyance he could have paid all his debts as they fell due, without the aid of the land conveyed.

The following is an unreported case. In December, 1900, A, who was then a wealthy man with few debts, bought a farm in Canada for his son. In 1902 A was ruined by the fraud of his manager, and was declared bankrupt in August, 1902. The farm which had been given to the son vested in A's trustee in bankruptcy and was sold for the benefit of A's creditors.

Note, If A had become bankrupt in 1903 the son could have kept the farm, because A could have paid all his debts in 1900.

(b) Conveyances for value.

By a statute of 13 Elizabeth (n) a conveyance of land or goods whether for value or not, if made fraudulently for the purpose of defrauding creditors is void, unless the conveyance was made to a bond fide purchaser for value who had no notice of the fraud.

Thus, if in the last example A had conveyed the farm to his son for say 50, it would probably not have been void as a voluntary conveyance under the Bankruptcy Act; but the small-ness of the consideration might have been evidence of an intention to defraud A's creditors, and, if so, the conveyance would have been void under the statute of 13 Elizabeth.

These statutes must not be confused with the statute of 27 Elizabeth (o). By this statute a voluntary conveyance of land (not goods) was void if the grantor afterwards conveyed the same land to a purchaser for value.

Under this statute the voluntary conveyance was void, even though it was not fraudulent at the time, and even though the subsequent purchaser had notice of it.

Buckle v. Mitchell (1812), 18 Ves. 100.

In 1793 P conveyed a rectory on trusts for his sister and her children. In 1810 P agreed to sell the rectory to B for 7000. B knew of the deed of 1793.

Held, B is entitled to specific performance of the agreement to sell the rectory to him.

This absurd rule is no longer law.

(n) c. 5.

(0) c. 4.

By the Voluntary Conveyances Act, 1893 (q)~, voluntary conveyance cannot be made void under the Act unless it was made "with fradulent intent."

This statute applies to all conveyances whether made before or after the Act.

The result now is that (1) a purchaser can get relief against a voluntary conveyance (under 27 Elizabeth), and (2) a creditor can get relief against any conveyance (under 13 Elizabeth), but in both cases only if he is intentionally defrauded.