Common Pleas. LEE v. HAYES. M. T. 1865. est jure" is held to apply. Here the plaintiff has a legal right to recover upon this note: see Lewin on Trusts, pp. 463-4, 4th ed., quoting the judgment of Kindersley, V. C., in Rice v. Rice (a), in which he lays it down that the only accurate way of expressing the rule is, "As between persons having only equitable interests, "if their equities are in all other respects equal, priority of time "gives the better equity; or qui prior est tempore, potior est "jure." And in that case it was held that the bare possession of the title deeds gave the party in whose hands they were an equity against the other who had been negligent enough to let him have them an equity sufficient to rebut the application of the rule. In the present case we have both legal title under the note, and an equity arising from the blamable inactivity of the defendant and his family, in not having informed John Lee of the fraud before his marriage. The equitable doctrine as to the nature of the protection afforded by the possession of the legal estate is well expressed by Page Wood, V. C., in the case of Rooper v. Harrison (b), p. 108:— "A party getting the legal estate acquires no new right in equity "in any way; but equity, regarding all the persons who have "incumbrances according to their priorities, considering that the "equitable interests pass, just as the legal interest does, by the effect "of the deeds, finds itself checked at times, and an obstacle thrown "in its way, by the incumbrancer saying, I have got the legal "estate interposed; I insist that it is mine at law, and that "there must be a superior equity shown in order to deprive me "of my legal estate.' It is merely staying the hands of the "Court, by resting on that legal estate which this Court will not "deal with unless a superior equity can be shown; and although the "Court holds that priority will give equity, yet it does not hold that "it gives so superior an equity, as between several incumbrancers, as "to enable a person who has an anterior charge to wrest the legal estate from the person who has obtained it without notice of the "anterior charge, and who has not parted with it. This is the "whole effect of the doctrine, and none other." For a full discussion of the maxim, "Where the equity of the (a) 2 Drew. 78. (b) 2 K. & J. 86. Common Pleas. parties is equal, the law shall prevail," see Butler's note to Coke M. T. 1865. Littleton, 290 b, note 15, where the subject is discussed with reference to the doctrines of equity respecting terms of years attendant on the inheritance. With respect to the second and third pleas, they disclose no defence at all, but simply tender immaterial issues. Cleary, for defendant. There is no allegation in the replication that we have slept on our rights, and no such point can now be insisted upon. With respect to the peculiar equity founded on the case of Roberts v. Roberts, its history was this:-In Montefiori v. Montefiori (a), Lord Mansfield lays it down that "The law is, that where upon proposals of "marriage, third persons represent anything material in a light "different from the truth, even though it be by collusion with the "husband, they shall be bound to make good the thing in the "manner in which they represented it: it shall be as represented "to be." In Turton v. Benson (b) it was held that a right to recover upon a bond passed in fraud of a marriage was not bettered by the bond's being assigned to another; neither had the creditors of the obligee a better equity than himself. The observations of Lord Eldon in The Vauxhall Bridge Co. v. The Earl of Spencer (c) are applicable to the present case :-" In "the view I take of the case, it will not be an obstacle to the "plaintiffs that they do not come with clean hands, for it is settled "that if a transaction be objectionable on grounds of public policy, "the parties to it may be relieved, the relief not being given for "their sake, but for the sake of the public. Thus it is in the case of "marriage brocage bonds." Now, the key to the case of Roberts y. Roberts (d), cited on the other side, is this doctrine of public policy. The agreement to release the £1000 was a fraud on the son's wife and children, and on the marriage which was first in point of time; the marriage which gives the defendant in this case his equity is first in point of time, and public policy requires that the wife and LEE V. HAYES. Common Pleas. LEE บ. HAYES. "or M. T. 1865. children of that marriage should not be damnified by supposed equities which have their origin in a marriage subsequent in point of date. We have next to consider whether the defendant has brought himself within the principle of law, that a purchaser for value of a negociable security before maturity, without notice of its infirmity, takes it cured from that infirmity. In point of fact it does not appear from the plaint to be negociable at all.-[MONAHAN, C. J. We have decided, over and over again, that, where a document is thus referred to in a pleading, we can look at it for the purposes of the argument. In the present case, the words “ order" do appear in the note itself.]-Then, assuming that the instrument in question is negociable, the question arises, are the plaintiffs purchasers for value, so as to come within the rule? Assignment by operation of law never enlarges an estate. As to the female plaintiff, she has no equity at all.-[CHRISTIAN, J. Is it not the equity of the innocent plaintiff which we have to compare with that of the innocent wife of defendant ?]-Just so; but then arises the further question, in what better position can the husband be than the wife? If this had been a chose in possession even,—not to say a chose in action,—I am not aware of any case where it has been held that marriage, which merely operates as an assignment by act of law, would have the effect of putting the assignee in a better position than the assignor.-[CHRISTIAN, J. Is there not a class of cases in which it has been held that marriage has bettered the title of a voluntary grantee ?]-In the case of a statutable mortgage, it has been held that the mortgagee acquires no greater estate than the mortgagor: Eyre v. M'Dowell (a). Does the estate which a husband takes in an unexpired term for years vest in him discharged from antecedent equities? The case is much stronger with respect to choses in action. The husband acquires no estate, but merely a right to reduce into possession. Can it be said that if he died, the wife could recover after the coverture ceased, though she admittedly could not before the coverture began? In this case the husband has not treated the marriage as an indorsement, by suing upon the note in his own name alone. (a) 9 H. of L. Cas. 619. LEE บ. HAYES. The case of M'Neilage v. Holloway (a) is not in point here. He M. T. 1865. Common Pleas. has elected to sue in his marital right, and not as an indorsee for value, and he can be in no better position than the wife. In Purdew v. Jackson (b) Lord Gifford says:-"The husband has not, on the "marriage, any immediate property in the wife's chose in action. "He has only a right to reduce it into possession, if it be in a state "capable of being so reduced. Reduction into possession is a "necessary and indispensable preliminary to the husband's having "any right of property in himself, or to his being able to convey "any right of property to another. If he dies without having "been able or willing to perform the condition, the right of the "wife continues unaltered equally as if she had never married. "Her title is the same after her husband's death as it was before "her marriage." See also Sherrington v. Yates (c), Gaters v. "Madeley (d). As to the second and third defences, the use of the word "count" instead of "defence" is a clerical error. The substance of the first defence is sufficiently incorporated. A perfect defence appears on the whole record: Halloran v. Thompson (e); Hammond v. Dayson (f); M'Dougal v. Robertson (g). Dowse, for defendant. Where an instrument is in fraud of a marriage, it is void: Palmer v. Neave (h); and even the creditors of the parties claiming under it are in no better position than their debtor, not having in them a legal title: Turton v. Benson (i). Marriage alone does not operate as an indorsement for value; it is necessary that the husband should have made an election to take under the marriage; which election might be sufficiently indicated by his suing in his own name without joining in his wife: M'Neilage v. Holloway (k), qualified by Sherrington v. Yates (1), Exchequer Chamber. See LEE V. HAYES. M. T. 1865. also Gaters v. Madeley (a), Richards v. Richards (b), Hart v. Common Pleas. Stephens (c). In the present case the husband has made no such election, and has no legal title except that of his wife, and has no more title to sue than his wife would have had in the event of her surviving him. As to the nature and effect of indorsement, see Castrique v. Buttigieg (d), Smith v. Johnson (e), Elwin v. Williams (f). Under the Law Merchant, nothing but actual indorsement for value gives the assignee a better equity than the assignor: Whistler v. Forster (g). This is a good legal defence, and equity would give no relief against it: Thiedemann v. Goldschmidt (h). An instrument of this kind is void on grounds of public policy; and where such is the case, no special equities affecting third parties can set it up for any purpose: Cockshott v. Bennett (i); Knight v. Hunt (k). Again, the mere fact that the innocent husband is a party here, does not give him any legal locus standi: Crowe v. Lysaght (1), citing Wallace v. Kelsall (m). Catherine Lee cannot be allowed to obtain the advantage of her fraud, on the ground that another innocent person has been injured by it: Jones v. Yates (n). With respect to the demurrers to the two other pleas, the Court, looking at the whole record, must see that it was intended to dispute the consideration of the contracts declared upon. The words "no accounts stated" are interpreted to mean 66 no consideration." Charles Barry, in reply. I do not dispute the doctrine that the equitable assignee of a chose in action cannot be in a better position than his assignor; for this I consider to be the ground of the decision in Turton v. Ben (a) 6 M. & W. 423. (c) 6 Ad. & E., N. S. 937. (e) 3 H. & N. 222. (b) 2 B. & Ad. 447. (d) 10 Moore, P. C. C. 94. (g) 14 C. B., N. S. 248. (h) 8 Weekly Rep,, Ch, 14; reported also in 1 DeGex, F. & G. 4. |