[75] left with the Senior Master of the said Court of Common Pleas within five years before the execution of the conveyance, settlement, mortgage, lease or other deed or instrument vesting or transferring the legal or equitable right, title, estate or interest in or to any such purchaser or mortgagee for valuable consideration, or as to creditors within five years before the right of such creditors accrued, and so toties quoties at the expiration of every succeeding five years."

I think that the meaning of this is so clear that no other construction is possible. The Act does not say five years before the creditor became such, but before his "right accrued ;" and it is obvious what that right must mean, from the previous words of the statute, which refer, in the case of purchasers and mortgagees, to the execution of the deed or instrument vesting in them their respective interests. When the Act referred to creditors it could not speak of a deed alone as giving them their rights, because such rights might attach under a bankruptcy or by a decree in this Court; but it must mean a right to the lands, and then the judgment must be registered within five years before such right accrued, in order to give it priority over such right. I agree with the argument that the construction of the word "right" is the right of the creditor to dispute the right of the judgment creditor; but the right intended is a right to the land.

Then when does a creditor acquire a right against leasehold property, which is the property sought to be affected in this case? Of course, during the life of the owner there is no question. After his death the creditor's right is simply this: he has no specific right against the leasehold or against any other chattel of the deceased debtor of which his executor may have taken possession. He has a right to sue the executor and to obtain a decree against him; and I should have considerable doubt, and I do not now deter-[76]-mine the point, whether, upon a common decree for an account, any right would attach upon the leaseholds or upon any specific chattel, unless the decree also directed a sale of such leaseholds or chattel. Before bill filed or before decree he had no more right to leaseholds than to any other chattel-in other words, he had no right at all. He had only a right to see that the executor got in all the property, and applied it in payment of the debts. Suppose the executor had sold the leaseholds in order to pay the debts, an unregistered judgment is not void, but the judgment creditor could come in in priority to simple contract creditors in the administration of the proceeds of the sale. It was argued that an executor is a trustee in this Court, and if he improperly aliens the assets this Court, at the suit of a creditor, will follow them into the hands of the assign, and will allow the creditor to fasten upon them. That would apply to any chattel, but it does not shew that a creditor has any lien upon specific parts of the assets. If he can shew that the executor has sold plate, for instance, to pay a debt of his own to a person who was aware of the fraud, the creditor may follow it.

I am bound to hold that the statute 2 & 3 Vict. c. 11 does not admit of any other construction than that a judgment is null and void against the lands of the debtor in respect of any creditor who can assert a right against those lands, unless registered within five years before such right accrued. Here the judgment was re-registered within five years before the bill in the creditors' suit was filed.

In re Perrin (2 Dru. & War. 147) was a very different case. It was a question of construction of a statute upon words which seem so plain that I am not surprised that Lord St. Leonards said he had no doubt upon the point, and only re-[77]-served his judgment as to how far the previous statute, 6 Will. 4, c. 14, had affected the question. By that statute it was enacted that a judgment creditor, who had obtained a judgment by confession, should be in the same position in bankruptcy as a simple contract creditor. There was an Irish Act which included in one clause several things which are more distributed in the corresponding Act relating to this country, and gave certain rights to the judgment creditor; and in that Act, after giving a judg ment the effect of a charge upon land, this provision occurs: nor shall such charge operate to give the judgment creditor any preference in case of the bankruptcy of the person against whom such judgment shall have been entered up, unless such judgment shall have been entered up one year at least before the bankruptcy: provided also that, as regards purchasers, mortgagees or creditors who shall have become such before the time appointed for the commencement of this Act, such

judgment shall not affect lands, tenements or hereditaments otherwise than as the same would have been affected by such judgment if this Act had not been passed;" and the very case had arisen of creditors under a bankruptcy, which was the case contemplated by the first part of the clause which I have read. The judgment creditor claimed to have certain rights in respect of a bankrupt's property, and urged that the simple contract creditors had no right to oppose, because the word "creditor' must be taken to mean persons who were like himself in the position of judgment creditors. Lord St. Leonards said that was not so, for the preceding clause dealt with the case of creditors in bankruptcy. The bankruptcy was a statutory execution for the benefit of all the creditors by simple contract or otherwise equally, including judgments registered within a year before the bankruptcy and judgments obtained by confession. Any claim of priority by such judgment creditor was the mischief intended to be prevented. The Act provided that every judgment creditor must regis-[78]-ter his judgment within a year before the bankruptcy; and as to creditors. before the passing of the Act, judgments were not to affect lands at all. That statute did not admit of any other construction.

In like manner I come, in this case, to the conclusion that the Act 2 & 3 Vict. c. 11, providing that an unregistered judgment shall be void against lands in respect of creditors, can only mean to refer to creditors having an interest in the lands. It provides that the judgment shall be void unless the judgment creditor re-register it within five years before the creditor's right accrued. That must be the right of the creditor in that thing in respect of which unless the re-registration is made the judgment is to be void, that is to say, "lands, tenements and hereditaments." In so deciding, I construe the statute in the mode which the preceding words render necessary, as Lord St. Leonards did, in regard to the statute which he had to consider in the case I have referred to.

There must be the usual decree for payment or a sale.

[79] THOMAS v. THOMAS. 1855.

[S. C. 25 L. J. Ch. 159; 1 Jur. (N. S.) 1160; 4 W. R. 135. See Wall v. Stanwick, 1887, 34 Ch. D. 767; In re Biss [1903], 2 Ch. 59.]

Infant's Estate. Bailiff. Statute of Limitations. Account of Rents.
Mortgage of Wife's Estate. Inquiry.

When a father has entered upon the estate of his infant children the presumption is that he entered as their guardian and bailiff, and therefore the Statute of Limitations does not begin to run against the children until they attain twenty-one, and from that time at least a child has twenty years within which he may recover possession. Semble, entry by a stranger might not have this effect.

If the father retain possession after the children attain twenty-one such possession will be considered to be continued in the character in which he entered, so that an account will be directed, not from the filing of the bill, but, if necessary, from the time of entry.

In an adverse suit, in the nature of an ejectment suit, against a person in no fiduciary relation to the Plaintiff, this account is only directed from the time of filing the bill. If a wife concurs with her husband in mortgaging property over which she has a power, the husband is primarily liable, unless the wife received the money for her separate use; and the Court will direct an inquiry as to this fact.

In 1814 William Thomas, the father of the Plaintiff, intermarried with Dorothy Williams, and, previously to and in contemplation of such marriage, a settlement was made, whereby one undivided fourth part of certain hereditaments, therein firstly and secondly described, was conveyed by the said Dorothy Williams unto and to the use of Lloyd and Howell, their heirs and assigns, subject to one-fourth part of an annuity of £30 issuing out of the same premises, and of a mortgage debt of £400, which was charged on the entirety of such premises; upon certain trusts as to the hereditaments

firstly therein described, under which, in the events which happened, the said William Thomas became equitable owner in fee-simple of such one-fourth of those hereditaments. And as to the hereditaments secondly therein described, in trust for the appointees of Dorothy Williams, notwithstanding her coverture, by deed or will: and in default thereof and subject thereto in trust for the said Dorothy Williams for life for her separate use; and from and after her death in trust for all and every the child and children of the said Dorothy Williams by the said William Thomas to be begotten, and their respective heirs and assigns for ever, if more than one, as tenants in common, and if but one for that one child, his or her heirs and assigns.

William Thomas and Dorothy, his wife, by indentures of [80] lease and release and appointment, dated the 4th and 5th days of May 1815, appointed and conveyed all the settled hereditaments and premises to the use of Richard Richards, his heirs and assigns, subject to one-fourth part of the said annuity of £30, and likewise to one-fourth part of the said mortgage debt of £400, and also subject to a proviso for redemption of the said premises, in case the said William Thomas and Dorothy, his wife, or either of them, their heirs, executors or administrators, or any or either of them, should pay to the said Richard Richards, his executors, administrators or assigns, the sum of £600, with interest on the same after the rate of £5 per cent. per annum; and William Thomas, for himself, his heirs, executors and administrators, covenanted with the said Richard Richards, his executors and administrators, for payment of the said mortgage money and interest.

Dorothy Thomas died on the 25th of August 1832, without having otherwise exercised her power of appointment; and upon her death her settled share became in equity divisible amongst her children by the said William Thomas, who were then living, and the representatives of those who had died in her lifetime, in equal shares, as tenants in common in fee.

Dorothy Thomas had by her said husband eight children born alive, of whom the Plaintiff was one.

At the time of his mother's death all the children were infants, the Plaintiff being seventeen years old, and he attained the age of twenty-one years on the 21st of September 1836.

William Thomas, the father of the Plaintiff, upon the death of his wife entered into possession of the said one undivided fourth part of the said settled hereditaments, and he continued in such possession until his own death, which [81] occurred on the 25th of August 1852; and while in such possession he kept down the interest of the said £600 advanced by Richard Richards on mortgage; and in 1818 William Thomas paid £100 towards satisfaction of the mortgage debt of £400 in the marriage settlement mentioned. The annuity of £30 had long since ceased.

The bill was filed against the executors and devisees of the real estate of William Thomas, and persons claiming under them, and against the other children of William Thomas and Dorothy, his wife, praying for a declaration of the rights of the parties, and that the Plaintiff might be let into possession of the property, and that the £600 and interest might be paid out of the assets of William Thomas in exoneration of the mortgaged estate.

Mr. Daniel, Q.C., and Mr. C. Hall, for the Plaintiff.

The Statute of Limitations has not barred the Plaintiff's claim, for the possession of his father must be taken to have been as bailiff for the Plaintiff during his minority. In Morgan v. Morgan (1 Atk. 489) Lord Hardwicke said, "Where any person, whether a father or a stranger, enters upon the estate of an infant, and continues the possession, this Court will consider such person entering as a guardian to the infant, and will decree an account against him, and will carry on such account after the infancy is determined;" and it was so held in Blomfield v. Eyre (8 Beav. 250), where an account was decreed upon a bill filed by the person whose estate had been so held after he came of age. [The Vice-Chancellor referred to Boddy v. Lefevre (1 Hare, 602, n.).] Wyllie v. Ellice (6 Hare, 505).

[82] The Plaintiff has a right to an account of the rents and profits at least from the death of his father. We do not ask for more. Dormer v. Fortescue (3 Atk. 124, 134), Hicks v. Sallitt (3 De G. M'N. & G. 801).

The guardianship in socage would cease when the Plaintiff attained fourteen; but

he may be presumed to have subsequently appointed his father his guardian until he should attain twenty-one, which may be done by parol.

The wife's joining in the mortgage was merely as surety for her husband, and therefore his estate is primarily liable to the mortgage debt. (See Hudson v. Carmichael, Kay, 613.)

Mr. W. M. James, Q.C., and Mr. Cairns, for Defendants in the same interest. Mr. Rolt, Q.C., and Mr. Renshaw, for the devisees and executors of William Thomas.

The right of the Plaintiff is barred, for he has been of age more than ten years; 3 & 4 Will. 4, c. 27, s. 16. His right accrued on the death of his mother in 1832. The Plaintiff must prove that his father entered upon the land as bailiff, which is a question of fact, not a presumption of law.

The effect of the Statute of Limitations is that, when persons have had possession for the specified period of limitation, they may claim the land as their own, and any person trying to dispossess them must prove all the facts upon which he relies for that purpose. The circumstance that a different period of limitation is provided for an infant, namely, ten years from attaining his majority, shews that the entry of another person upon his lands during his infancy is not always as bailiff; for if it were the infant [83] ought to have twenty, not ten, years after attaining majority before his right should be barred. The trustees of the settlement ought to have taken possession. Even if the father took possession lawfully during the life of his wife, his continuing in possession afterwards was adverse: Doe dem. Parker v. Gregory (2 Ad. & E. 14), Scott v. Nixon (3 Dru. & War. 388).

The accounts of rents and profits should only be taken from the filing of the bill : Pulteney v. Warren (6 Ves. 73).

The reply was not heard.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. I do not accede to the argument that, because an infant can treat any stranger who has entered upon his land as his bailiff, for the purpose of enforcing an account of the rents and profits received by such stranger, it therefore follows that the infant may in all cases treat such stranger as a bailiff, for the purpose of escaping from the effect of the Statute of Limitations. I think that is open to considerable argument, especially as that statute provides that ten years only shall be allowed after the termination of the disability of infancy for the person who has attained majority to assert his rights, a provision which, it has been justly observed, must be rendered altogether nugatory, if it be held that in every case where a stranger enters upon an infant's estate he enters as bailiff; because, if that were so, time would not begin to run against the infant until he attained twenty-one.

But there is another principle which affects this case, namely, that possession is never considered adverse if it can be referred to a lawful title. An important authority on [84] this point is Doe dem. Milner v. Brightwen (10 East, 583), where a party who had taken possession of copyholds on the death of his wife, by an adverse title, lived more than twenty years afterwards, and it was then found that there was an old custom of the manor by which he had a right to curtesy, and therefore his possession was referred to that title which was consistent with the title of the other party.

In this case a father who had several children entitled to estates on the death of his wife, all the children being under age at that time, entered upon the estates. I am of opinion that, prima facie, unless there were strong evidence to the contrary, his entry must be taken to be on behalf of his infant children and as their natural guardian— the guardian in socage of the Plaintiff he could not be, for such guardianship terminates when the child attains fourteen years of age; but considering the right of the father as the natural guardian of the infant Plaintiff, and the practice of this Court in making allowances for maintenance, he having entered and received the rents and profits, and there being no evidence of his not having discharged the obligation imposed upon him of maintaining his children, remembering the fact that they were all under his own charge and were infants, I think that I must reasonably infer that the entry was an entry on their behalf and as their guardian, and was totally different from the case of a mere stranger entering upon property under similar circumstances.

Then it is said that, though the entry might have been lawful in its inception, the retention of the property after the children attained twenty-one barred their right under the Statute of Limitations; but I think the better and sounder view here is that, if this gentleman entered as guardian, this Court would never allow him to set up any other title to the estate. However, if it were set up, he [85] would be in a different position as to the statute from a stranger who had so entered. Then, assuming that he ceased to continue in the position which up to that time he had held as a father receiving the rents for his children, still the rights of the children would accrue for the first time when they respectively attained twenty-one, and each would have twenty years from such time to assert his rights, and therefore the statute has not barred such rights.

I am far from being unwilling to uphold to the fullest extent the Statute of Limitations-not only because it is part of the law of the land, but because stale claims ought to be discouraged; but I think that when the statute is set up as a defence, and such defence fails, that is of all others a case for costs. I reserve for the present the consideration of the period from which the account of rents should be taken.

With respect to the mortgage for £600. In Clinton v. Hooper (1 Ves. jun. 173) Lord Thurlow carefully considered the question as to the liability of the wife's estate; and he there intimates that it depends entirely upon the proof whether the wife or the husband received the mortgage money. There must, therefore, be an inquiry to whom and for whose use the £600 raised by that mortgage was paid and applied.

Dec. 7. THE VICE-CHANCELLOR Sir W. PAGE WOOD. I have considered the question as to the time from which the account of rents should be directed to be taken. The rule is as I had supposed. In an adverse suit, in the nature of an ejectment suit, the account is directed only from the filing of the bill. In a suit against a person affected with a fiduciary character the account is taken either from the original period, or, if the Court thinks fit, [86] on account of laches, for six years only previous to the filing of the bill. This renders it necessary for me to give my opinion as to the character in which the possession of this property has been held; and I think the sounder view is that the father was in possession until his death as guardian of his children, and therefore the account must be taken from his death. It is only a question of two years; but, as I am obliged to decide it, I must direct the account to be taken from the death of the father.

[86] ROOPER v. HARRISON. May 28, 29, 30, June 21, 1855.(1)

[See Thorpe v. Holdsworth, 1868, L. R. 7 Eq. 146; Ward v. Duncombe [1893], A. C. 390; Taylor v. London and County Banking Company [1901], 2 Ch. 263.]

Mortgage. Priority. Notice. Conversion. Legal Estate. Tabula in naufragio. Attendant Terms. "All the Estate, &c." Merger. Advowson Appendant. General Words.

First mortgage to W., with power of sale, and declaration of trust of residue of moneys arising from the sale, for the persons entitled to the equity of redemption. Second mortgage to R. Third mortgage, without notice of the second, to H., who was W.'s solicitor, and as such had possession of the deeds. Afterwards, other incumbrances. Then W. died, having devised mortgage and trust estates to H., and appointed him and another executors. H. sold under the power, and conveyed the mortgaged estate, paid off W.'s mortgage out of the purchase-money, and retained the balance. Subsequently H., for the first time, had notice of R.'s mortgage. Held, First, that R.'s omission to give notice did not give priority either to H. or to a subsequent incumbrancer, who gave notice before R.; the estate, though subsequently converted, being real estate when the securities were executed; and to real estate the rule, as to notice giving priority, does not apply.

(1) The report of this case has been delayed, in consequence of the editor's being unable to procure the requisite papers at an earlier period.