good to the mortgagee, though the mortgagor retains possession. (a) In other respects, the rights and remedies of the parties are nearly the same as with respect to realty. If the mortgagee be not in possession, he may, on default, either obtain possession by action at law, or foreclose by suit in chancery. If he be in possession, there is no occasion for a bill of foreclosure. In this case, the mortgage does not differ from a pledge or pawn to which possession is essential, except in the mere form of the writing. When the mortgagee is in possession, and there is a default, he may sell, on reasonable notice to the mortgagor; but until sale, the right of redemption continues. If no pay-day be fixed, there may be a redemption at any time before sale on notice. But there are some cases where the mortgagee of chattels never has possession; as maritime pledges, on bottomry and respondentia, (b) which the master of a ship is authorized to make in a foreign port, in cases of necessity. To secure a loan on bottomry, the ship and freight are hypothecated to the lender. To secure a loan on respondentia, the cargo only is hypothecated. In neither case, of course, does possession accompany the pledge; and the hypothecation is evidenced by bond. The lender stands in the place of an insurer, for he takes the risk of the voyage. If the ship or cargo be lost, he receives nothing; if not, he receives the principal loaned, and the extraordinary interest agreed upon; and he has a lien upon the thing hypothecated, for payment.

LECTURE XXVI.

EQUITABLE ESTATES. (z)

§ 150. In what they Consist. The estates before described, with the exception of mortgages, are strictly legal estates; that is, such

other lots of similar goods, but keeps the accounts separately, there is no such confusion of goods as to charge him with the value at the time he took them there. Armstrong. McAlpin, 18 Ohio State, 184. A power of sale in such a mortgage is valid. Cobb v. Farr, 16 Gray. 597; Hawkins v. Hastings Bank, 1 Dill 462.

(a) McGarran r. Haupt, 9 Iowa, 83; Forest v. Tinkham, 29 Ill. 141; Marrow v. Forney, 35 Ala. 131; Hackett r. Manlove. 14 Cal. 85.

(b) 3 Kent, Com. lec. 49. What is sufficient necessity to justify a bottomry bond, is fully discussed in The Grapeshot, 9 Wall. 139.

(c) See 2 Black. Com. 327; 4 Kent, Com. lec. 61, 62; the title Uses and Trusts in the Digests of Hilliard and Cruise; Bacon on Uses; Saunders on Uses and Trusts.

In General. With respect to equitable estates, it is a general maxim, that as between equities otherwise equal, the elder is preferred. Woods v. Dille, 11 Ohio, 455. Thus a bill of peace by a patentee under a junior entry will not be sustained against an equitable title under a senior entry. Wallace v. Porter, 14 Ohio, 272. And see Nisewanger v. Wallace, 16 Ohio, 557. An equitable estate is descendible, and liable to be sold for payment of debts. Avery v. Dufrees, 9 Ohio, 145. Prior to the statute of 1810, a decree for a conveyance did not operate as a conveyance, but had to

as courts of law can recognize and enforce. And in the earliest period of the English law, no other estates were known. But the

be enforced by attachment or sequestration. And this is still the case with decrees of the federal courts. Randall v. Pryor, 4 Ohio, 424; Shepherd v. Ross County, 7 Ohio, pt. 1, 271. An equitable title, even with possession, is no bar to an action of ejectment. Spencer v. Marckel, 2 Ohio, 263. It can only be enforced in equity. Barr v. Hatch, 3 Ohio, 527. But an equitable title with possession for more than twenty-one years is good, even in ejectment, against the naked legal title. Barton v. Morris, 15 Ohio, 408. So after an undisputed possession for forty years, an equitable title will be presumed against a naked legal title, Bierce v. Pierce, 15 Ohio, 529. Though a decree for a conveyance here operates as a conveyance, it is as between the parties subject to the contingency of reversal; but not as to a purchaser before notice of proceedings to reverse. Taylor v. Boyd, 3 Ohio, 337.

Innocent Purchaser without Notice. This question cannot arise where neither party has the legal title. Woods v. Dille, 11 Ohio, 455. Anketel r. Converse, 17 Ohio St. 11. Recitals in a deed or patent are notice. Bell v. Duncan, 11 Ohio, 192. Parties dealing with heirs in regard to descended lands, are chargeable with notice of the extent of their rights. Piatt v. St. Clair, 6 Ohio, 227. Notorious actual adverse possession is an answer to the plea of innocent purchaser, that being notice which would put a prudent man upon inquiry. House v. Beatty, 7 Ohio, pt. 2, 84; Reeder v. Barr, 4 Ohio, 446. Woodworth v. Paige, 5 Ohio State, 70; Williams v. Sprigg, 6 id. 585; Morrison v. Kelly, 22 Ill. 610. Warren v. Richmond, 53 Ill. 52; Hoppin v. Doty, 25 Wis. 573; Russell v. Streezy, 22 Mich. 235; Phillips v. Costley, 40 Ala. 486; Pell v. McElroy, 36 Cal. 268. Notice of facts sufficient to put a reasonable man on inquiry is good. Baker v. Bliss, 39 N. Y. 70. The knowledge need not come from the claimant: it is sufficient if it come from any source worthy of credit. Butcher v. Yocum, 61 Penn. St. 168. The doctrine of notice does not apply to mortgages, as they take effect against third parties only when recorded. Bloom v. Noggle, 4 Ohio State, 45; Sidle v. Maxwell, id. 236; Tousley v. Tousley, 5 id. 78; Ewing r. Shuey, 8 id. 509. Nor can this plea protect a title originally defective against a better adverse title. McArthur v. Phœbus, 2 Ohio, 415. This doctrine of innocent purchaser applies to permanent leaseholds. Ludlow v. Kidd, 3 Ohio, 541. Where the legal title has been fraudulently obtained against a superior equity, and conveyed to an innocent purchaser without notice, redress can only be had against the party committing the fraud. Ludlow v. Kidd, 4 Ohio, 244. Booraem v. Wells, 4 Green, 87. To sustain the plea of innocent purchaser without notice, the purchase-money must have been paid in money or its equivalent: giving notes secured by mortgage is not sufficient. Haugh wout v. Murphy, 21 N. J. Eq. 118; Bowen v. Prout, 52 Ill. 354. A purchaser with notice from a vendee without notice, will be protected. Harrison v. Forth, 2 Prec. Ch. 51. A decree in chancery, curing a defective deed, is not notice to a purchaser under an attachment, not being party to the decree. Paine v. Moreland, 15 Ohio, 435. And see Warner v. Webster, 13 Ohio, 508. A purchaser at a sheriff's sale, without notice of a secret equity, is protected, though he had notice before confirmation. Oviatt v. Brown, 14 Ohio, 285.

Title Bonds and Defective Deeds. It is not unusual to sell land, with an obligation to convey upon payment of the purchase-money, instead of executing a deed, and taking back a mortgage. This obligation must be in writing, to comply with the statute of frauds, and is usually in the shape of a title bond. Now this only conveys to the purchaser an equitable estate, even when the purchase-money has all been paid. And the same is true of an intended legal conveyance, which happens to lack any of the legal requisites of a deed. Accordingly, the equitable owner can only perfect his legal title by a decree in chancery for a deed, in the nature of a decree for specific performance of a contract to convey. And this may be had against the heirs of the vendor, if the title descends to them. But where the declaration is in covenant upon a title bond, and only the condition is relied upon, without the penal part, it is not a covenant. Huddle v. Worthington, 1 Ohio, 423. Where land is sold by title bond and the vendee in possession, a judgment against the vendor will bind the land to the extent that the purchase-money remains unpaid. Lefferson v. Dallas, 20 Ohio St. 68. Such a vendee in possession has a superior equity to a subsequent purchaser from the vendor. Goings v. Allen, 4 Bush (Ky.), 608.

Equitable Liens. The most common case of equitable lien is that of a vendor for the purchase-money. Although the vendee has obtained the legal title, yet if he has not paid for it, he is not in good conscience entitled to the absolute ownership. Accordingly the vendor retains a lien against the vendee, and all claiming under him with notice. But this is only when the vendor has done no act to indicate that he does not

institution of a court of chancery has given rise to another kind of estates, which may be denominated equitable, and which now

intend to rely upon the land, as by taking a mortgage upon only a part of the land, or by taking any collateral security. Williams v. Roberts, 5 Ohio, 35; Shall v. Biscoe, 18 Ark. 142; McCarty v. Penet, 4 Ind. 226; Pierson v. David, 1 Clarke, 23; McAlpine v. Burnet, 19 Texas, 497. But see Stevens's Appeal, 38 Penn. State, 9; Follett v. Reese, 20 id. 551. But a lien dates from the date of the contract of sale, and subsequently taking a mortgage at the time of conveyance upon the property for the balance of the purchase-money will not defeat it. Neil v. Kinney, 11 Ohio State, 58; Anketel v. Converse, 17 Ohio St. 11; Wasson v. Davis, 34 Texas, 159. Contra, Pease v. Kelly, 3 Oregon, 417. But it has been held in some States that even taking collateral security, though prima facie a waiver, may be prevented from operating as such by an express agreement. Schwartz v. Stein, 29 Md. 112; McGonigal v. Plummer, 30 Md. 422; Adams v. Buchanan, 49 Mo. 64. In Illinois a distinction is taken where a lien is reserved in the deed of conveyance, and in such case the taking of other security will not waive the lien. Carpenter v. Mitchell, 54 Ill. 126. But the mere taking of notes or bonds of the vendee without endorsement does not rebut the lien. Chilton v. Braidlee, 2 Black, 458; Burger v. Potter, 32 Ill. 66; Walker v. Sedgwick, 8 Cal. 398; Griffin v. Blanchard, 17 Cal. 70; Buntin v. French, 16 N. H. 592. And there are cases where collateral security does not rebut the lien; namely, where the sale is by title bond, or contract to convey, the vendor retaining the legal title. This equitable lien of the vendor is superior to the right of dower in the widow of the vendee. There is also what is called an equitable mortgage, which is where a debtor deposits his title deeds with a creditor as security for a debt. This was very common in England, but is rarely done here, if at all. It has been held that no lien is created in Ohio by such a deposit, though such is the declared intention. Probasco v. Johnson, 2 Disney, 96. But it seems to be recognized in New Jersey. Griffin v. Griffin, 3 Green, 104. The vendor's lien is founded upon an implied trust between him and the vendee, and therefore does not pass to the assignee of a note given for the purchase-money. Jackman v. Hallock, 1 Ohio. 318; Brush v. Kinsley, 14 Ohio, 20. Keith v. Horner, 32 Ill. 524; Walker v. Williams, 30 Mo. 165; Shall v. Biscoe, 18 Ark. 142; Ross v. Heintzer, 81 Cal. 313. But see, contra, Kern v. Hazelrigg, 11 Ind. 443; Moore v. Raymond, 15 Texas, 554; Rakestraw v. Hamilton, 14 Iowa, 147; Griffin v. Camack, 36 Ala. 695; Lewis v. Pusey, 8 Bush, 615; Watt v. White, 33 Texas, 421; Wakefield v. Johnson, 26 Ark. 506. It may be preserved when assigned in terms, though not otherwise. Smith v. Smith, 9 ALL. Pr. (N. 8) 420; Hooper v. Logan, 23 Md. 201; Walsh v. Bagle, 30 Md. 262. When the lien is expressly reserved in the deed of conveyance, it will pass by the assign ment of the right to receive the purchase-money. Carpenter v. Mitchell, 54 Ill. 126. Nor will this lien pass by a sheriff's sale, so that the purchaser can set it up against the widow's dower. McArthur v. Porter, 1 Ohio, 99. The vendor does not extinguish his lien simply by taking a mortgage; and therefore it will have priority over a judgment between the date and recording of the mortgage. Boos v. Ewing, 17 Ohio, 500; Anketel and wife v. Converse, 17 Ohio State, 11. Contra, Harris v. Harlan, 14 Ind. 439; Mattix v. Weand, 19 Ind. 151; Selby v. Stanley, 4 Minn. 65. Where a guardian has given a lien upon rents to improve his ward's land, this will hold good against a paramount title purchased by the ward when of age. Este v. Strong, 2 Ohio, 401. The advancement of money to pay an intestate's debts creates no equitable lien on the property descended to his heirs. Lieby v. Parks, 4 Ohio, 469. But a vendor's lien will pass by devise along with the legal title. Tiernan v. Beam, 2 Ohio, 383. Where several tracts have descended to heirs, subject to the debts of the ancestor, some of which have been aliened by the heirs, equity will compel the creditors to exhaust first those which have not been aliened; and as to those which have been aliened, to begin with the last and proceed back in regular order. Piatt v. St. Clair, 6 Ohio, 227. The vendor's lien is preferred to that of a judgment without notice, and to that of a mortgage with notice. Patterson v. Johnson, 7 Ohio, pt. 1, 225. Where one creditor has a lien upon only one fund, and another has a lien upon two, the former may compel the latter to exhaust the fund upon which he has no lien. Bank of Musk. v. Carpenter, 7 Ohio, pt. 1, 21; Fassett v. Traber, 20 Ohio, 540. In Kentucky, by statute, the vendor's lien does not exist unless reserved in the deed. 2 Stanton's Rev. St. 230; Maupin v. McCormack, 2 Bush, 206. It has there become a common method of securing unpaid balances of purchase-money instead of taking back a mortgage. It is not lost by renewing notes. Lush v. Hopper, 3 Bush, 179. What is a sufficient reservation in the deed, see Keith v. Wolf, 5 Bush, 646. Ledford v. Smith, 6 Bush, 127. If the reservation was omitted

occupy a very important place in the law of realty. It is not common in the books, to find such a title as equitable estates; but I have selected it for the purpose of discussing a variety of rules relating to property, which could not well be embraced under any other head; and which are essential to a proper understanding of this branch of law. By an equitable estate is meant any right or interest in land, which not having the properties of a legal estate, requires the aid of a court of chancery to make it available. What are the requisites of a legal estate will be explained. hereafter. It may be laid down in the mean time as a general proposition, that whenever one man has a legal title to land, to which another, on the established principles of equity, has a right, the latter may, by recourse to a court of chancery, render his equitable title available against the legal title. In all such cases, the owner of the legal estate is held to be a trustee for the owner of the equitable estate: and chancery will compel him to execute the trust, for the use of the latter. Hence equitable estates have acquired the name of uses or trusts; under which name their properties will now be considered.

§ 151. Origin of Uses and Trusts. (a) In the civil law, a distinction existed between a right to enjoy the rents and profits of land, and a right of property in the land itself; and thus one person might have the naked legal ownership, while the whole beneficial interest belonged to another. In the early part of the fourteenth century, this distinction was introduced into the English law through ecclesiastical influence. The efforts of the church to enrich itself by the acquisition of lands had been opposed by a

by mistake, it may be corrected. Phillip v. Skinner, 6 Bush, 662. In Kansas the lien is not recognized at all. Simpson v. Munder, 3 Kans. 172; Brown v. Simpson, 4 Kans. 76.

Uses and Trusts. If the English statute of uses was ever in force here, it became so by the territorial law of 1795, or by the State law of 1805, which were repealed by the law of 1806. 1 Chase, Stat. 190, 512, 528. Since then, it certainly has not been in force. Helfenstein v. Garrand, 7 Ohio, pt. 1, 275; Thompson v. Gibson, 2 Ohio, 339. This statute is commonly referred to as 27 Henry the 8th, chap. 10. The doctrine of charitable uses has been recognized in the case of Bryant v. Thornhill, 7 Ohio, pt. 2, 135, where certain persons calling themselves the Licking Land Company, in making partition, appropriated sundry tracts "to be a perpetual fund for the support of the ministration of the gospel on the premises of the company," but created no trustee or donee. After thirty years, the legislature appointed a trustee, and the dedication was sustained. And see McIntire v. Zanesville, 9 Ohio, 203; McIntyre's Adm'rs v. Zanesville, 17 Ohio St. 354; Girard v. Philadelphia, 7 Wall. 1. Where a trust was created in Virginia, of lands in Ohio, and, on the death of the trustee, his place was supplied by appointment of the Virginia court of chancery, it was held that the conveyances of the second trustee could not be recognized here. Henry v. Doctor, 9 Ohio, 49. Where a conveyance in trust is fraudulent, it may be set aside in chancery, without making the beneficiaries parties. Campbell v. Watson, 8 Ohio, 500. The obligations of a trustee of lands descend to his heirs, and if infants, they must have a guardian ad litem duly appointed and notified. St. Clair v. Smith, 3 Ohio, 355. As to trusts for religious societies, see Price v. Methodist Church, 4 Ohio, 515; Keyser v. Stansifer, 6 Ohio, 363; Smith v. Swormstedt, 16 How. 288; The Dublin Case, 38 N. H., 459; Att'y-Gen. v. Proprietors of Meeting-house, &c., 3 Gray, 1.

(a) 2 Black. Com. 327, 332. Religious societies are authorized under order of court to convey their real estate by act of March 24, 1860.

series of statutes, known as the statutes of mortmain, (a) the object of which was, to disable religious corporations from receiving conveyances of real estate. But these various restrictions related to legal estates only; and to avoid their effect, recourse was had by the clergy to the above distinction made in the civil law. Conveyances, therefore, instead of being made directly to the church, were made to individuals, with the understanding that the church. was to have the beneficial enjoyment. This usufructuary or beneficial interest, thus separated from the legal ownership, was denominated use; and the court of chancery, then directed by the clergy, assumed the entire jurisdiction of uses, on the ground that they were exclusively matters of conscience, and not of law. By degrees, therefore, under the decision of shrewd and interested chancellors, the doctrine of uses grew up into a regular and established system. For various reasons, the use of land thus severed from the legal ownership, was deemed a more beneficial estate than where both the use and the legal title were united. It was discharged from all the feudal burdens; was not liable to forfeiture for treason; and could be transferred from hand to hand, without the tedious formalities of the common law. For these and other reasons, individuals who were not within the statutes of mortmain, entertained a decided preference to uses over legal estates. The consequence was that by the end of the fifteenth century, a large proportion of the real property of the kingdom was incumbered in this complicated and double manner; one person having the legal estate and another the use. This state of things gave rise to a series of legislative acts, which ended with the enactment, in 1536, of the celebrated statute of uses, of which some account must now be given. The intention of this statute was to destroy the double property in land, which had resulted from the introduction of uses; not by destroying the use, but by changing it from an equitable into a legal estate. Accordingly, it was enacted in substance, that whenever one person was seised of land for the use of another, he who had the use, should ipso facto have a legal estate of the same measure and quality. Wherever this statute could operate, therefore, its effect was to abolish the intervening legal estate, by annexing it to the use and making that a legal estate; and had the language of the statute been as comprehensive and explicit as its object required, the court of chancery would have been completely deprived of its jurisdiction over real property, which was the main motive of the provision. But this effect was not produced; and after a long and severe contest between the courts of law and chancery, the doctrines of uses were revived under the name of trusts. The great preliminary question under the statute was, whether the statute executed the use; that is, converted it into a legal estate. If it did, the jurisdiction belonged to the courts of law, if not, to the courts of chancery. Of the manner in which the object of the (a) Id. 268.