estate, supposing it had been vested in him. (q) But when the But when the equitable interest is of such a nature that if it had been a legal estate it could not have been conveyed without the aid of a fine or recovery, then the owner of such equitable interest must use the same kind of assurances by matter of record, in the transfer of his beneficial interest, as if it had been a legal estate; thus the equitable rights of tenant in tail and of married women must be conveyed by fine or recovery. (r) And a common recovery suffered by a cestui que trust in tail in possession will bar all equitable remainders depending upon such estate tail, although there was no legal tenant to the præcipe. (s) The equitable interest of a cestui que trust or mortgagor may be devised precisely the same as a legal estate. (t) If not devised, the same descends precisely as a legal estate, and this whether the tenure be customary, as borough-English, or gavelkind, or otherwise, (u) and there may be a possessio fratris of a trust.(v) So a trust estate may be entailed, and which, as just stated, can only be barred by fine or recovery, which will have the same effect upon an equitable as upon a legal estate. (1) So a trust estate may be limited to a person for life, and in such case a fine or other assurance by the cestui que trust for life will not operate as a forfeiture of his estate. (y) So trust estates are subject to curtesy, (z) unless where the husband is excluded by an express agreement or trust for the separate use of his wife. (a) But a trust estate is not subject to dower, which is the reason why, upon a purchase by a husband during coverture, care is usually observed, by the intervention of a trustee, to prevent any legal estate vesting in him of which the wife would be dowable. (b) We shall state the effect of executions against trust estates when considering how they affect proceedings at law, (c) and if an equitable title has not been acted upon the same as the legal should, we shall find that it is barred by analogy to the statutes of limitations. (d) (q) North v. Champerton, 2 Chan. Cas. 63, 78; Botteler v. Allingham, 1 Bro. C. C. 72. (r) 1 Sand. U. & T. 273. (s) North v. Way, 1 Vern. 13; Burnably v. Griffiths, 3 Ves. 276; Wykhan v. Wykhan, 18 Ves. 418; see further, 1 Prest. Conv. 23. (t) Greenhill v. Greenhill, 2 Vern. 680; ante, 355. (u) Bankes v. Sutton, 2 P. Wms. 713, 736; 2 Ves. 304; Caldecot's R. 250. (v) 2 P. Wms. 713, 736. VOL. I. (x) Kirkman v. Smith, Ambl. 518; 2 (y) 3 Atk. 728; 2 P. Wms. 146. (a) 3 Atk. 695, 716; 1 Ves. 298. (d) Medlicot v. O'Donel, 1 Bro. C. C. BB CHAP. IV. 1. RIGHTS TO REAL PROPERTY. CHAP. IV. PROPERTY. respect to ac tions and legal proceedings. As respects actions and suits at law for the recovery of real property or chattels real, or for injuries to the same, and in which any question respecting the right is to be tried, the proceeding must be in the name of the legal owner, and not of a party who has only an equitable interest; (e) though the latter, when in actual possession, may sue a stranger for an immediate injury to his possession, because in the latter proceeding the mere proof of possession suffices, and without investigation of the real ownership and even without any actual right, is considered sufficient to enable a party to sue a mere trespasser.(ƒ) In actions of ejectment (which are founded on the legal right of property) the count must always be on the supposed demise of the trustee, in whom the legal interest and immediate right of possession is vested, and not upon the demise of the cestui que trust, or of a party having the equitable interest, unless he also have a legal right of possession; (g) though a person in actual possession, even under a void lease, at the time a trespass has been committed, might support an action for such trespass. (h) And it is settled that a cestui que trust cannot in any case sue his trustee at law, even for the most malicious waste to the property in which he is beneficially interested, but must proceed in a Court of Equity to prevent or obtain compensation for the injury, (i) and a mere equitable mortgagee by deposit of deeds would stand in the same situation; whilst e converso the trustee might at law support ejectment even against his own cestui que trust. (k) The same rule applies to legal reversions; thus if there be a tenant for years in possession, and there be a mortgagee or a trustee for a term, in whom the legal interest in reversion is vested, the latter, and not the mortgagee or cestui que trust, would be the proper party to sue the hundred for the felonious demolition of buildings, () though sometimes, by concealing the mortgage or deeds passing the legal interest, the party having only the equitable interest might succeed in such action. (m) A mere equitable interest or equity of redemption in a term for years, cannot be taken in execution under a fieri facias against the party beneficially entitled.(n) And, therefore, (e) 7 T. R. 47, 50; 8 T. R. 118; 10 B. & C. 87; see the principle, ante, 6 to 8. (f) 1 East, 244; Willes, 221; 3 Burr. 1565; 1 Taunt. 83, 190; 8 East, 394; 5 B. & Ald. 600. (g) 7 T. R. 47, 50, The instances, ante, 317, in which the surrender of a legal term vested in a trustee may be presumed, constitute exceptions. (h) Supra, n. (ƒ). (k) Doe v. Reid, 8 T. R. 118. (1) Pritchit v. Waldron, 5 Term R. 14. (m) 9 B. & Cres. 134. (n) 8 East, 467; 2 New R. 461; 3 Bro. C. C. 48; 1 Ves. J. 431; Tidd, 9 ed. 1003. As to a freehold lease, see Comberbatch, 291. when the defendant has only an equity of redemption in a leasehold estate, an execution will not affect it, as the legal estate is in the trustee or mortgagee; (0) and the judgment creditor's only remedy in that case is by filing a bill in equity to redeem the estate by paying off the mortgage incumbrance ; (0) and before so redeeming, it is said, he must first issue a fieri facias,(p) though it is not necessary to show it to have been returned. (q) It has been decided that a trust of a term for years is not within the statute 29 Car. 2, c. 3, s. 18, (presently stated,) because that act only extends to trusts of land in fee; (r) and courts of law so far take notice of equitable interests and qualify those that are legal, as to hold that when it is clear that a term is merely for trust purposes, as if it be a term for 2,000 years, they will construe it not to be a mere lease but a trust term to attend the inheritance, and not to be subject to be taken in execution, or sold under an execution against a trustee who has no beneficial interest under the same. (t) As respects the effect of an elegit or extent against freehold equitable interests in land, Mr. Tidd thus distinctly states the law. (u) "At common law, if a man was seised of the legal estate in lands to the use of or in trust for another, against whom a judgment had been obtained, or who had entered into a statute or recognizance, these lands were not liable to execution upon the judgment, statute or recognizance of cestui que trust.”(x) But the 29 Car. 2, c. 3, s. 10, altered the law in this respect, and enacts that, "it shall be lawful for every sheriff or other officer, to whom any writ or precept is directed at the suit of any person or persons, of, for, and upon any judgment, statute or recognizance, to do, make, and deliver execution, unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents and hereditaments, as any other person or persons are in any manner seised or possessed in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom execution is so sued had been seised of such lands, &c. of such estate as they are seised of in trust for him at the time CHAP. IV. I. RIGHTS TO REAL PROPERTY. (0) 3 Atk. 200, 739; For. 162; 8 East, 476; Moore, 281; 1 Brod. & B. 506. (p) 3 Atk. 200; 1 Vern. 399; 1 P. W. 445; 6 Ves. 72; 1 Mad. Ch. Pr. 205, 522. (9) Lord Redesd. Pl. 3d. ed. 102; 1 Mad. Ch. Pr. 205. (r) 2 Vern. 248; and see 2 Saund. 5 ed. 11, n. 17; 8 East, 476, 486; Tidd, 9th ($) Cowp. 595. (t) Quære, Id. ibid. (u) Tidd, 9th ed. 1035, 1036. (x) Co. Lit. 374, b. ; 2 Saund, 5th ed. 11, n. 17. I. RIGHTS TO REAL CHAP. IV. of the said execution sued, which lands, &c. by force and virtue of such execution, shall accordingly be held and enjoyed freed PROPERTY. and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution shall be sued; and if any cestui que trust shall die, leaving a trust in fee simple to descend to his heirs, then and in every such case such trust shall be deemed and taken and is thereby declared to be assets by descent; and the heir shall be liable to, and chargeable with, the obligation of his ancestor for and by reason of such assets, as fully and amply as he might or ought to have been, if the estate in law had descended to him in possession in like manner as the trust descended." The words in the act," at the time of the said execution sued," are held to refer to the seisin of the trustee, and therefore if he has conveyed the lands by the direction of cestui que trust before execution, though seised in trust at the time of the judgment, the lands cannot be taken in execution. (y) And a trust created by a defendant in favour of himself and another person is not a trust within the meaning of the above statute, which is confined to cases where the trustees are seised or possessed in trust for a defendant alone and not jointly with another person. () An equity of redemption cannot be taken in execution on the above statute, (a) though it is deemed assets; (b) and therefore when the estate is mortgaged, the plaintiff's remedy is by filing a bill in equity to redeem, which he is entitled to do, on payment of principal, interest and costs. (c) But an elegit must be first sued against the defendant and delivered to the sheriff, (d) though it does not seem necessary to have it returned. (e) And it is holden, that if a man be cestui que trust of a term, it is not assets within the statute, which extends only to a trust of lands in fee. (ƒ) An equity of redemption, however, may be taken under an extent.” (g) Under an extent, the crown may take not only the legal estate of the debtor, but also trust estates, (h) or an equity of (y) Com. Rep. 226; Com. Dig. tit. Execution, C. (14); and see 4 Bing. 335. (2) 4 Bar. & Ald. 684; and see 4 Bing. 96, 335. (a) 3 Atk. 200, 739; 1 Ves. J. 431; 3 Bro. C. C. 478, S. C.; 8 East, 467; 2 New Rep. 461. (b) 2 Freem. 115; 2 Atk. 290; and see Toller's Ex. 1st ed. 415, 416. (c) Powel, Mortgages, 1st ed. 99; and see For. 162; 1 Mad. Ch. 522, 523. (d) S Atk. 200; and see 1 Vern. 399; 1 P. Wms. 445; 6 Ves. 72; 1 Mad. Ch. 205, 522, 523. (e) Lord Redesdale, Pl. 3d ed. 102; 1 Madd. Ch. 205, n. (r). (f) Fleetwood's case, 8 Coke, 71; 2 Vern. 248; and see 2 Saund. 5th ed. 11, n. (17); 8 East, 474, 486. (g) For. 162, 163; 1 Price, 207. (h) West on Extents, 129; Tidd. 1050; but see Carth. 5. redemption; (¿) and if the extent be against several, the lands of CHAP. IV. · all or any of them are liable to be seized. (k) But we have seen that no interests in lands of copyhold tenure are liable to be seized either under an elegit or an extent; (4) although every description of beneficial interest, whether legal or equitable, as well in freehold as copyhold property, is liable to be sold under a commission against a bankrupt, or by an assignee of a discharged insolvent. (m) I. RIGHTS TO REAL PROPERTY. CES, REMEDIES, to REAL PRO PERTY .(n) In the early parts of this chapter, when enumerating the dif- II. & III. INferent descriptions of real property corporeal, and the different JURIES, OFFENinterests therein, we have noticed the civil and most of the and PUNISHcriminal injuries which usually affect each, and the modern MENTS relating remedies and punishments, (o) and when considering the times of enjoyment (as whether the estate be in possession, remainder, or reversion, (p)) and the number of owners, (as parceners, joint tenants, and tenants in common, (q)) we stated how those circumstances varied the civil remedies and criminal punishments; and other remedies and punishments have been noticed in preceding pages, but still it is expedient, in concluding this chapter, to take a practical view of all the civil remedies and criminal punishments that can be applicable to any interest, legal or equitable, in real property or chattels real, with the exception of Real actions, which we will reserve for future consideration, when we state the practice of the Court of Common Pleas in particular, where those remedies must be pursued. ces into those to corporeal and those to incorporeal property. From the distinct natures of corporeal and incorporeal pro- Division of inperty, and in respect of the latter not being tangible, there is juries and offena very marked distinction between the injuries and remedies affecting them, and therefore we will first consider the injuries, civil and criminal, affecting real property corporeal, and the appropriate remedies and punishments; and, secondly, the injuries, remedies, and punishments relating to real property incorporeal. In considering these, our object will be to give a practical outline. The particulars of each remedy will be better examined in a subsequent part of the work. (i) For. 162; 1 Price's R. 207. (k) West, Extents, 136. (1) Ante, 235; 1 Rol. Ab. 888; 2 Bar. & Cres. 242, 243; 3 Dowl. & R. 603; Parker, 195; Tidd, 9th ed. 1050. (m) Ante, 235. (n) See division, ante, 145. |